REED
District Judge.
This
action was commenced in the district court of Iowa, in and
for Linn county, on October 3, 1919, by the plaintiff causing
to be served an original notice or summons upon the
defendants, as authorized by the statutes of Iowa. The
plaintiff alleges in his petition that when he commenced the
action, and for many years prior thereto, he had been a
resident of Springville, in said Linn county, Iowa, and that
he was induced to purchase from the defendant S. C. Quimby
Land Company, a corporation engaged in selling and trading
land, with its headquarters in Linn county, Iowa, in charge
of the defendant Clayton Dumont, some 208 acres of land in
the state of Texas, for which he paid to defendants the sum
of $60,000, and because of fraudulent representations of the
defendants he was damaged in the sum of $40,000, for which he
asks judgment against the defendants. The notice of such suit
or summons was served upon the defendants in said Linn
county, Iowa, where the petition alleges that the S. C
Quimby Land Company was doing business and maintained an
office, in charge of the defendant Clayton Dumont as its
agent, and that he was also interested financially in said
transaction.
The
petition is duly verified by the plaintiff, Batchelder, and
the notice or summons so served upon the defendants reads as
follows:
'You
and each of you are hereby notified that there will be on
file in the office of the clerk of the district court
aforesaid, on or before the 23d day of October, 1919, the
petition of the plaintiff, claiming of you and each of you
the sum of forty thousand dollars ($40,000.00), on account
of fraud and misrepresentations in the sale to him of two
hundred eight (208) acres of land in Hidalgo county, Texas.
* * * Now, unless you appear thereto and defend before noon
of the second day of the next regular November, 1919, term
of the district court aforesaid, which will begin on the 3d
day of
November, 1919, and be held in the courthouse at Marion,
Linn county, Iowa, default will be entered against you and
judgment rendered and entered as prayed. (Signed by
attorneys for plaintiff.)'
Upon
which notice the sheriff's return of service is indorsed
as follows:
'The
attached notice came into my hands for service on the 3d
day of October, 1919, and I hereby certify that on the same
date I personally served the same on the within-named
Clayton Dumont by reading the same to him and personally
delivered to him a true copy thereof. All done in Rapids
township, Linn county, Iowa.
'John
Taylor, Sheriff of Linn County, Iowa, 'By E. G.
Thompson, Deputy Sheriff.'
Afterwards
the defendants filed in said state court a petition for the
removal of said cause to this court, as follows:
'In
the District Court of Linn County, Iowa.
'C.
E. Batchelder, Plaintiff, v. Quimby Investment Company and
Clayton Dumont.
'Petition
to Remove This Cause to the United States District Court.
'Come
now the defendants, Quimby Investment Company and Clayton
Dumont, your petitioners, and respectfully show that they
are the defendants in the above-entitled cause, and that
the matter in dispute in said cause exceeds, exclusive of
interest and costs, the sum, amount, or value of three
thousand dollars ($3,000.00).
'Your
petitioners show that this is a suit of a civil nature
being an action brought by the plaintiff against your
petitioners in which the plaintiff in said cause charges
that he, the said plaintiff, had theretofore purchased of
defendant S. C. Quimby Land Company, certain land in
Hidalgo county, Texas, which land was purchased by reason
of the false and fraudulent misrepresentations in
connection with the sale thereof, and that by virtue of
said misrepresentations the plaintiff sustained damages of
forty thousand dollars ($40,000.00), being the difference
between the value of the land purchased and its actual
value, and it is for forty thousand ($40,000.00) dollars
damage this suit is prosecuted.
'Your
petitioners therefore pray this honorable court to proceed
no further herein, except to make an order of removal as
required by law, and to accept said surety and bond, and to
cause the record herein to be removed into said District
Court of the United States within and for the Cedar Rapids
Division of the Northern District of the state of Iowa,
according to the statute in such cases made and provided.
'Your
petitioner Quimby Investment Company shows that it was sued
herein as the S. C. Quimby Land Company, that the correct
name of this defendant is the Quimby Investment Company,
and that the name of S. C. Quimby Land Company is used as a
trade-name, and that in truth and fact the correct
corporate name of the said defendant is the Quimby
Investment Company, in that the Quimby Investment Company
does business in and through its trade-name of S. C. Quimby
Land Company.
'Your
petitioners show that this is a suit involving a
controversy wholly between citizens of different states, to
wit, in this: That the plaintiff was at the time and
commencement of this suit, and ever since has been, and
still is, a resident and citizen of and residing within the
Cedar Rapids Division of the United States District Court
for the Northern District of Iowa, and that the defendant
Quimby Investment Company is a corporation duly chartered,
licensed, and existing under and by virtue of the laws of
the state of Kansas, and is and was at the date of the
institution of this suit a citizen and resident of and
residing within the state of Kansas, and that your
petitioner Clayton Dumont is and was at the date of the
institution of this suit a resident and citizen of and
residing within the state of Texas.
'And
your petitioners offer herein a bond, with good and
sufficient surety, in the penal sum of five hundred
dollars ($500.00), conditioned for their entry in the
District Court of the United States for the Cedar Rapids
Division of the Northern District of Iowa, within thirty
days from the date of the filing of this petition and the
said bond for removal, a copy of the record in this suit,
and for the payment of all costs which may be awarded by
said District Court f the United States, if said District
Court of the United States should hold that this cause
was wrongfully or improperly removed thereto. And your
petitioners respectfully pray.
'(Signed)
W. F. Zumbrunn and E. E. Bowers,
'Attorneys
for Petitioners.'
Attached
to which petition is an affidavit as follows: 'State of
Missouri, County of Jackson-- ss.:
'W.
F. Zumbrunn, of lawful age, being duly sworn, on his oath
says that he is the agent of the defendants herein, that he
has read the foregoing petition for removal, and well knows
the contents thereof, and that the statements and allegations
therein made and contained are true.
'(Signed)
W. F. Zumbrunn.'
(Subscribed
and sworn to by the said Zumbrunn before a notary public on
October 27, 1919.)
When
said petition for removal was filed in the district court of
Iowa does not appear. Among the files of this court is the
following notice:
'In
the District Court of Linn County, Iowa.
'C.
E. Batchelder, Plaintiff, v. Quimby Investment Company and
Clayton Dumont, Defendants.
'Notice.
'To
the Above-Named Plaintiff, or His Attorneys of Record,
Johnson, Donnelly & Swab:
'You
are hereby notified that on or before the 3d day of
November, 1919, on behalf of the defendants, a petition
praying for the removal of this cause from the state to the
defendants, a petition praying for the removal of this
cause proper bond, copies of which are attached hereto,
will be filed in the above-entitled cause. And on the 3d
day of November, 1919, said petition will be called up for
hearing and disposition, at which time and place you may be
present, if you so elect.
(Signed)
W. F. Zumbrunn, 'Attorney for Defendants.'
Attached
to the foregoing is a certificate as follows:
'State
of Iowa, County of Linn-- ss.:
'John
Taylor, of lawful age, being first duly sworn, upon oath
says that he did on the 22d day of October, 1919, serve a
copy of the foregoing notice upon C. E. Batchelder, the
plaintiff herein.
'(Signed)
John Taylor, Sheriff.'
Said
certificate is subscribed and sworn to before a notary public
on October 22, 1919. On February 21, 1920, the plaintiff, C.
E. Batchelder, filed a motion to remand said cause to the
district court of Iowa in and for Linn county, from which it
was removed, as follows:
'C.
E. Batchelder, Plaintiff, v. S. C. Quimby Land Company,
Clayton Dumont, Defendants.
'Motion
to Remand Case to District Court of Linn County, Iowa.
'Comes
now the plaintiff, and moves the court to remand the
above-entitled cause to the district court in and for the
county of Linn and state of Iowa, on the ground that this
court is without jurisdiction to hear and determine
the cause, and is without jurisdiction of either the
parties to or the subject-matter of this suit for the
reasons follows:
'That
at the time of beginning this suit in the district court of
Linn county, Iowa, for a long time prior and for a long
time subsequent thereto, both the plaintiff and the
defendant Clayton Dumont were residents of said Linn
county, Iowa.
'That
in support of the foregoing motion the plaintiff hereby
refers to the affidavits hereto attached and made a part
hereof, marked Exhibits A, B, C, etc.
(Signed)
Johnson, Donnelly & Swab, 'Attorneys for Plaintiff.'
Among
the files is...
