Fife v. Whittell

• Decision Date: 11 June 1900
• Docket Number: 12,837.
• Citation: 102 F. 537
• Parties: FIFE et al. v. WHITTELL.
• Court: U.S. District Court — Northern District of California

102 F. 537

FIFE et al. v. WHITTELL.

No. 12,837.

United States Circuit Court, N.D. California.

June 11, 1900

Rodgers Paterson & Slack, for plaintiffs.

J. P Langhorne and Lloyd & Wood, for defendant.

Action at law by Ellen A. Fife and another against George Whittell. Motion to remand the cause to the state court. Granted.

MORROW Circuit Judge.

This action was brought by the plaintiffs in the state court to recover from the defendant the sum of $790,362, with interest, as damage suffered and loss sustained by reason of false and fraudulent representations of the defendant. The defendant petitioned for the removal of the cause to this court, on the ground of diverse citizenship of the parties. The cause was brought to this court. The plaintiffs filed a plea to the jurisdiction of this court. The defendant answered. The plea was amended, and, by stipulation of counsel, the answer to the original plea was ordered to stand as the answer to the amended plea. Evidence was taken upon the issues raised, and argument heard upon the matter. The case is now before the court upon the sufficient of the petition for removal, and the evidence taken upon the issues presented by the amended plea and the answer thereto.

In the petition for removal the defendant alleges:

'That the controversy in this action or suit, and every issue of fact and law therein, is wholly between citizens of different states, and which can be fully determined as between them; that is to say, the plaintiffs, Ellen A. Fife and George S. Fife, are now, and were at the time of the filing of the complaint in this action or suit, citizens and residents of the city and county of San Francisco state of California, and of the Northern United States judicial district of said state of California, and the defendant, your petitioner, George Whittell, is now, and was at the time of the filing of the said complaint, a citizen and resident of the state of New York.'

Plaintiff contends that this allegation is insufficient, for the reason that it is not alleged that the defendant is a nonresident of the state of California. The act of March 3, 1875, amended by the act of March 3, 1887, and corrected by the act of August 13, 1888 (25 Stat. 433), provides, in section 1:

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at law or in equity * * * in which there shall be a controversy between citizens of different states in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid (two thousand dollars).'

Section 2 of the same act provides that:

'Any other suit of a civil nature, at law or in equity (that is to say, any suit other than one arising under the constitution or laws of the United States or treaties made or which shall be made under their authority), of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending or which may hereafter be brought in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein being nonresidents of that state.'

Where the question of jurisdiction of the United States circuit court is presented, we are confronted at once with the presumption that the cause is without the jurisdiction of the court, unless the contrary affirmatively appears. Turner v. Bank, 4 Dall. 8, 1 L.Ed. 718; Ex parte Smith, 94 U.S. 455, 24 L.Ed. 165; Robertson v. Cease, 97 U.S. 646, 24 L.Ed. 1057; Grace v. Insurance Co., 109 U.S. 278, 283, 3 Sup.Ct. 207, 27 L.Ed. 932. We must also bear in mind that the acts of 1887 and 1888 were designed to contract the jurisdiction of the circuit courts, both with respect to causes original and by removal. Hanrick v. Hanrick, 153 U.S. 192, 197, 14 Sup.Ct. 835, 38 L.Ed. 685; Railway v. Brow, 164 U.S. 277, 17 Sup.Ct. 126, 41 L.Ed. 431; Camprelle v. Balbach (C.C.) 46 F. 81. It is also an established rule that parties seeking to remove causes to the United States circuit court are bound to comply strictly with every provision required by the act. One of the provisions of the removal act is that, where a cause of action between citizens of different states pending in the state court involves an amount within the jurisdiction of the United States circuit court, it may be removed to that court by the defendant or defendants therein 'being nonresidents of the state.' This restriction to the right of removal, based upon the residence of the defendants, is clearly jurisdictional, and, if it does not appear in the record in the state court, it must be clearly shown in the petition for removal as a right which the defendant has and claims, or it will be presumed not to exist. The fact that it may be inferred argumentatively from any averment in the petition as to other facts is not sufficient.

In Amory v. Amory, 95 U.S. 186, 24 L.Ed. 428, the defendants alleged that the suit was instituted by the plaintiffs as executors, and under letters of administration issued to them in New York, and that the plaintiffs, as such ...