Santa Clara County v. Goldy Mach. Co.

• Citation: 159 F. 750
• Decision Date: 21 February 1908
• Docket Number: 14,562.
• Parties: SANTA CLARA COUNTY v. GOLDY MACHINE CO. et al.
• Court: U.S. District Court — Northern District of California

159 F. 750

SANTA CLARA COUNTY v. GOLDY MACHINE CO. et al.

No. 14,562.

United States Circuit Court, N.D. California.

February 21, 1908

J. H Campbell, Dist. Atty., and C. C. Coolidge, Asst. Dist. Atty for plaintiff.

William A. Beasley, H. Ray Fry, and William A. Bowden, for defendant Goldy Mach. Co.

VAN FLEET, District Judge.

The petition for removal was filed by the defendant Goldy Machine Company alone, and wholly fails to disclose the fact, now sought to be shown in opposition to the motion to remand that the defendant Tilden was a merely nominal or formal party defendant to the action; nor is that fact sufficiently made to appear elsewhere in the record. In fact, no reason is stated in the petition why Tilden did not united in the application to remove, nor anything said as to his citizenship. In this respect, therefore, the petition failed to make a case entitling the first-named defendant to remove the case here by reason of diversity of citizenship of the parties-- the sole ground relied upon for claiming jurisdiction in this court-- since for this purpose the parties must be collectively considered. It is upon the case made by the record upon which removal is asked and had that the question of jurisdiction depends, and if there is a failure to state the necessary jurisdictional facts the omission is fatal to the right of removal, and cannot be supplied or cured in this court, for the reason that the case is not properly here, but jurisdiction still remains in the state court. Crehore v. Ohio & Miss. Ry. Co., 131 U.S. 240, 9 Sup.Ct. 692, 33 L.Ed. 144. In that case, after discussing the decisions of that court from which this principle is deduced, it is said:

'It thus appears that a case is not, in law, removed from the state court upon the ground that it involves a controversy between citizens of different states, unless, at the time the application for removal is made, the record, upon its face shows it to be one that is removable. We say, upon its face because 'the state court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further'; and 'all issues of fact made upon the petition for removal must be tried in the Circuit Court.' Stone v. South Carolina, 117 U.S. 430, 432, 6 Sup.Ct. 799, 29 L.Ed. 962;

Carson v. Hyatt, 118 U.S. 279, 287, 6 Sup.Ct. 1050, 30 L.Ed. 167. If the case be not removed, the jurisdiction of the state court remains unaffected, and, under the act of Congress, the jurisdiction of the federal court could not attach until it becomes the duty of the state court to proceed no further. No such duty arises unless a case is made by the record that...