Creagh v. Equitable Life Assur. Soc.

• Decision Date: 30 November 1897
• Citation: 83 F. 849
• Court: United States Circuit Court, District of Washington, Northern Division
• Parties: CREAGH v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

83 F. 849

CREAGH v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

United States Circuit Court, D. Washington, Northern Division.

November 30, 1897

John Arthur, for plaintiff.

Thomas R. Shepard, for defendant.

HANFORD District Judge.

This action was commenced in the superior court of the state of Washington for King county. The defendant filed a petition and bond, and obtained an order of said court removing the same to this court. In his complaint the plaintiff pleads a contract in writing, by which he was constituted the defendant's agent for the province of British Columbia and was to receive certain profits and emoluments, to accrue from insurance in the defendant company to be effected through said agency within the territory assigned to him, and alleges breach of said contract on the part of the defendant by which plaintiff has been damaged to the amount of $19,537.45, in which sum he prays for judgment, with costs. The defendant's petition for removal of the cause to this court sets forth that the amount in controversy exceeds $2,000; that the plaintiff is a citizen and resident of the province of British Columbia, and a subject of Victoria queen of Great Britain; and that the defendant is a corporation organized and existing under the laws of the state of New York, and not a resident or inhabitant of the state of Washington. The plaintiff has moved to remand the case to the superior court, in which it was commenced, upon several specified grounds, but I will only refer to those which were relied upon in the argument, viz; First. Notice of the removal proceedings was not given to the plaintiff or his attorney. Second. Both parties are nonresidents of this district. Third. In a suit by an alien plaintiff against a citizen, the law does not authorize removal by the defendant. Fourth. No answer, plea, or demurrer having been filed, it does not appear by the record that there is any controversy, and the law does not confer jurisdiction upon a circuit court of the United States, on the ground of diversity of citizenship, unless there is an actual controversy to be litigated, which must appear by the record when the jurisdiction is first invoked.

1. The law provides only for ex parte proceedings for the removal of causes into the circuit courts of the United States. The statute provides, and the decisions hold, that the filing of a proper petition and bond, within the time limited, in a case which is removable under the law, does ipso facto oust the state court of its jurisdiction. When the petition and bond shall have been made and filed in the state court, 'it shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit. ' The right of removal is absolute in causes which may be removed, and questions as to the right of removal, and the sufficiency of the petition and bond in each case, can be determined only by the circuit court. Therefore notice to the plaintiff of proceedings prior to filing the transcript in the circuit court could avail nothing if given. The only notice provided for by statute or rule of court is contained in the seventy-fourth rule adopted by this court, which is as follows:

'Whenever the proper proceedings have been perfected in a state court to remove a case from such court to this court, pursuant to any statute of the United States, either party may at any time thereafter, as of course, file the transcript required by law in this court, and serve written notice of such filing upon the adverse party, or his attorney.'

The purpose of this rule is to enable either party to speed the cause. Under the statute, a party who removes a cause is bound only by the conditions of his bond to file the transcript and have the cause docketed on the first day of the next succeeding term, but the rule authorizes either party to have the transcript filed and the cause docketed immediately after the petition and bond have been filed in the state court.

2. Notwithstanding the nonresidence of the parties, the plaintiff, being an alien, might have commenced this action by original process in...