Holton v. Helvetia-Swiss Fire Ins. Co. of St. Gall, Switzerland

• Decision Date: 04 August 1908
• Citation: 163 F. 659
• Parties: HOLTON v. HELVETIA-SWISS FIRE INS. CO. OF ST. GALL, SWITZERLAND.
• Court: U.S. District Court — Eastern District of New York

163 F. 659

HOLTON v. HELVETIA-SWISS FIRE INS. CO. OF ST. GALL, SWITZERLAND.

United States Circuit Court, E.D. New York.

August 4, 1908

Wendell P. Barker, for plaintiff.

Wallace Butler, & Brown (Charles M. Turrell, of counsel), for defendant.

CHATFIELD District Judge.

The plaintiff brought an action in the Supreme Court of Kings county against the defendant, which is stated in the summons to be a corporation of St. Gall, Switzerland. This summons with notice, was served, under the laws of the state of New York, upon Hon. Otto Kelsey, Superintendent of Insurance, and the defendant, having appeared specially, demanded a copy of the complaint. Subsequently, this appearance having been set aside by the state court, a general appearance was entered and before the time to serve the complaint had expired discovery and the inspection of a contract between the defendant and the Rhine & Moselle Fire Insurance Company of Strasburg, Germany, was ordered. This order also directed the deposit of the contract with the clerk of Kings county for inspection, and an appeal was taken from said order, on which appeal the order was affirmed and the deposit of the contract directed made within 30 days.

The defendant thereupon removed the case to this court, upon a petition containing a statement that the plaintiff 'at the time of the commencement of said suit was, and still is a citizen of a state of the United States, to wit, as your petitioner is informed and believes, a citizen of the state of New York, residing in the Eastern district thereof,' and that the defendant 'at the time of the commencement of said suit was, and still is, a citizen of a foreign state, to wit, a citizen of the republic of Switzerland. ' The petition further alleges that the assignor of the plaintiff (the plaintiff being alleged to claim under assignment of a chose in action) 'was at the time of the commencement of this suit, and still is, a citizen of a state of the United States, to wit, as your petitioner is informed and believes, a citizen and a resident of the state of California.'

The motion to remand has been made upon the ground that the removal record does not show that the plaintiff nor the plaintiff's assignor is a citizen of the United States, as required by Act March 3, 1887, c. 373, Sec. 1, 24 Stat. 552, as amended by Act August 13, 1888, c. 866, Sec. 1, 25 Stat. 433 (U.S. Comp. St. 1901, p. 508).

The defendant contends that the doctrine set forth by Ex parte Wisner, 203 U.S. 449, 27 Sup.Ct. 150, 51 L.Ed. 264, has been amended or overruled by the cases of In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, and Western Loan & Savings Co. v. Butte & Boston Consolidated Mining Co., 210 U.S. 368, 28 Sup.Ct. 720, 52 L.Ed. 1101, so as to make it the law of the United States, under the sections of the statute above quoted, that United States courts have jurisdiction over all actions between an alien and citizens of the states, and that an action can properly be removed into the district containing the place where the action was instituted, and that the strict construction of the statute with relation to removals, as interpreted by this court in the case of Tierney v. Helvetia-Swiss Fire Insurance Company (March 5, 1908) 163 F. 82, has been expressly overruled. Be this as it may, that question need not be considered. This motion must rest on whether the allegations of the removal record are sufficient, and if they are ambiguous or lacking in some statement which the record shows could be supplied, under the doctrine in the case of Kinney v. Columbia Savings, etc., Ass'n, 191 U.S. 78, 24 Sup.Ct. 30, 48 L.Ed. 103, whether amendment can be made.

The plaintiff has cited the cases of Wolff v. Archibald (C.C.) 14 F. 369, Jones v....