Antoinette Kinney v. Columbia Savings Loan Association

• Decision Date: 09 November 1903
• Docket Number: No. 102,102
• Citation: 24 S.Ct. 30,191 U.S. 78,48 L.Ed. 103
• Parties: ANTOINETTE B. KINNEY and Clesson S. Kinney, Appts. , v. COLUMBIA SAVINGS & LOAN ASSOCIATION
• Court: U.S. Supreme Court

191 U.S. 78

24 S.Ct. 30

48 L.Ed. 103

ANTOINETTE B. KINNEY and Clesson S. Kinney, Appts.,

v COLUMBIA SAVINGS & LOAN ASSOCIATION.

No. 102.

Submitted October 13, 1903.

Decided November 9, 1903.

On August 25, 1899, appellants commenced this suit in the district court of Salt Lake county, Utah. By it plaintiffs sought an accounting and the cancellation of a deed of trust executed by them to a trustee for the benefit of the defendant. The complaint alleged that 'the defendant was and now is a corporation organized and existing under the laws of the state of Colorado.' The deed of trust (copied in the complaint) was executed November 22, 1890, and purports to be 'between Antoinette B. Kinney and Clesson S. Kinney, her husband, of the county of Salt Lake and Territory of Utah, parties of the first part; and Clyde J. Eastman' named as trustee. It was executed before a notary public in Salt Lake county.

On September 2, 1899, the defendant filed a petition and bond for removal to the circuit court of the United States for the district of Utah. That petition alleged:

'Your petitioner, The Columbia Savings & Loan Association, respectfully shows to this honorable court that the matter and amount in dispute in the above-entitled suit exceeds, exclusive of interest and costs, the sum or value of $2000.

'That the controversy in said suit is between citizens of different states, and that your petitioner, the defendant in the above-entitled suit, was, at the time of the commencement of the suit, and still is, a resident and a citizen of the city of Denver and state of Colorado.'

On November 28, 1899, the plaintiffs filed a motion to remand the cause to the state court on the ground, that 'the amount or matter in dispute therein does not, and at the time said cause was removed from the state court, did not, exceed the sum or value of $2,000, exclusive of interest and cost.' On the same day the defendant filed in the circuit court an answer and cross complaint, by the latter seeking a foreclosure of the trust deed. In the cross complaint it alleged 'that it is a corporation, organized and existing under the laws of the state of Colorado, and is a citizen of said state, and that complainants herein are citizens and residents of Salt Lake City, state of Utah.'

On December 30, 1899, the plaintiffs gave notice of a motion to amend their motion to remand, by adding as a further ground 'that the diverse citizenship of the parties at the time of the commencement of the suit, and at the time of the removal of said cause from the state court, does not appear upon the record.'

On January 2, 1900, the defendant gave notice of a motion to amend the paragraph heretofore quoted from its cross complaint to read as follows:

'First. That your orator, at the time of the commencement of this suit, was and ever since then, and now is, a corporation organized and existing under and by virtue of the laws of the state of Colorado, and a citizen and resident of the city of Denver and state of Colorado, and that the said plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, at the time of the commencement of this suit, were, and ever since have been, and still are, citizens of the state of Utah, and residents thereof, residing at the city of Salt Lake in the said state of Utah.'

And also notice of a motion to amend the petition for removal by adding this allegation:

'That the plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, and each of them, were at the time of the commencement of this suit, and still are, citizens and residents of the city of Salt Lake and state of Utah.'

On January 6, 1900, the motion to remand was denied, and leave given to amend the petition for removal and the cross complaint. Subsequently the case went to trial in the circuit court, and a decree was rendered in favor of the defendant for the recovery of $4,003.45, and the foreclosure of the trust deed. From such decree an appeal was allowed to this court upon the single question of jurisdiction.

Messrs. Charles S. Varian and Franklin S. Richards for appellants.

Mr. J. Norman for appellee.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court:

Had the Federal court the power to permit the amendment of the petition for removal? The suit was removable. Diverse citizenship in fact existed and the amount in controversy was over $2,000. The right to remove existed, but the petition for removal was defective. If it had been sufficient there would have been no need of amendment. The question is whether it was so defective as to be incurable. In other words, was the case one in which the court had power to permit the facts to be stated in order to secure to the defendant the removal to which it had a right? By § 1 of chap. 866 (25 Stat. at L. 434, U. S. Comp. Stat. 1901, p. 508), jurisdiction is given to the circuit courts of all suits of a civil nature 'where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000,' and 'in which there shall be a controversy between citizens of different states.' By § 2 of the same act any such suit pending in a state court may be removed into the circuit court of the United States by the defendant or defendants if nonresidents. The petition for removal, which was duly verified, alleged the existence of just such a suit. True, this court, construing the statute, has held that the difference of citizenship must exist both at the commencement of the suit and at the filing of the petition for removal. Gibson v. Bruce, 108 U. S. 561, 27 L. ed. 825, 2 Sup. Ct. Rep. 873; Akers v. Akers, 117 U. S. 197, 29 L. ed. 888, 6 Sup. Ct. Rep. 669; Stevens v. Nichols, 130 U. S. 230, 32 L. ed. 914, 9 Sup. Ct. Rep. 518. But this does not change the fact that the language of the petition follows that of the statute in stating the existence of that which the statute makes the basis of a right of removal.

It is also true that when a record presented to this court fails to show a diversity of citizenship, both when the suit was commenced and when the petition for removal was filed, a reversal has been ordered and the case sent back to the circuit court, with directions to remand to the state court. Stevens v. Nichols, 130 U. S. 230, 32 L. ed. 914, 9 Sup. Ct. Rep. 518; Crehore v. Ohio & M. R. Co. 131 U. S. 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 692; Jackson v. Allen, 132 U. S. 27, 33 L. ed. 249, 10 Sup. Ct. Rep. 9; La Confiance Compagnie d'Assurance Contre l'Incendie v. Hall, 137 U. S. 61, 34 L. ed. 573, 11 Sup. Ct. Rep. 5; Kellam v. Keith, 144 U. S. 568, 36 L. ed. 544, 12 Sup. Ct. Rep. 922; Mattingly v. Northwestern Virginia R. Co. 158 U. S. 53, 39 L. ed. 894, 15 Sup. Ct. Rep. 725. In none of these cases does it appear that the defect was noticed in the circuit court, and in some not noticed by the parties after the case had reached this court, but action was taken here by virtue of the duty resting on all Federal courts not to entertain jurisdiction if it does not affirmatively appear. It is also true that in Crchore v. Ohio & M. R. Co. 33 L. ed. 144, 9 Sup. Ct. Rep. 692, this court was asked to grant leave to the circuit court to permit an amendment of the defective removal proceedings, and the application was denied, but that was after the case had been finally disposed of in the circuit court, and the insufficiency of the removal papers had been declared by this. Here the application was made shortly after the filing of the removal papers, and before any action had been taken in the circuit court. The amendment was allowed by the circuit court, and the question now to determine is whether that court had power to...