Creagh v. Equitable Life Assur. Soc.
| Decision Date | 25 June 1898 |
| Parties | CREAGH v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES et. al. |
| Court | United States Circuit Court, District of Washington, Northern Division |
Upton Arthur & Wheeler, for plaintiff.
Burke Shepard & McGilvra, for defendants.
This action was commenced in the superior court of the state of Washington for King county, to recover damages for an alleged libelous letter, injurious to the plaintiff, alleged to have been written and published by the defendants Waterhouse & Pritchard, acting in that behalf as agents of their co-defendant, the Equitable Life Assurance Society, and in the transaction of business within the scope of their agency as well as in behalf of themselves. The Equitable Life Assurance Society filed in the state court a petition and bond for removal of the case into this court, alleging in its petition as the ground for removal that there is a separable controversy, which is wholly between the plaintiff and said petitioning defendant; that the amount in controversy exceeds $2,000; and that the plaintiff is an alien, and said defendant is a corporation organized under the laws of the state of New York, and is a citizen of the state of New York, and not a resident of the state of Washington. The plaintiff filed in the state court an affidavit in opposition to the petition for removal, in which he controverted certain allegations of the petition, and alleged affirmatively that at and prior to the time of commencing this action he was and had been a resident and citizen of Seattle, in the state of Washington, and that he had declared his intentions to become a citizen of the United States, and had taken and subscribed the oath prescribed by the laws of the United States to be taken by an alien at the time of making such declaration. The defendants have caused a transcript of the record of the state court to be filed in this court, and the case has been regularly docketed, and a date set for the trial, although there has been no appearance by or on behalf of the plaintiff. From the facts appearing by the record, a question of jurisdiction arises, which it is the duty of the court to notice and pass upon, notwithstanding the failure of the plaintiff to present the question by any motion or pleading. I hold that the case is not removable, and this court is without jurisdiction, for two reasons: In the first place, the only ground for removing the case alleged by the petitioning defendant is a separable controversy, but the law does not permit one or more of several defendants to remove a cause into a United States circuit court on this ground, unless there be a controversy which is wholly between citizens of different states. An alien who is a party to a separable controversy is not given the right to remove a cause. King v. Cornell, 106 U.S. 395-399, 1 Sup.Ct. 312. And the converse of this proposition must be equally true; that is to say, one of several defendants, who is a citizen of one of the United States, is not authorize to...
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