Johnson v. F. C. Austin Mfg. Co.
| Decision Date | 29 October 1896 |
| Citation | 76 F. 616 |
| Parties | JOHNSON v. F. C. AUSTIN MANUF'G CO. |
| Court | U.S. District Court — District of Kansas |
Poehler & Peairs, for plaintiff.
Alford & Savage, for defendant.
The plaintiff commenced his suit against the defendant in the district court of Douglas county, Kan., to recover damages for personal injuries. At the proper time, the defendant filed its petition in the state court to remove the case to this court on the ground of diverse citizenship, at the same time presenting a bond for removal. On hearing, the state court declared the petition and bond sufficient, and ordered the case removed. The plaintiff now moves the court to remand the case by filing the following motion:
'Now comes this plaintiff and moves this court to remand the above entitled cause to the district court of Douglas county, Kansas, on the ground that this court is without jurisdiction to hear and determine the cause.'
The specific grounds of the motion are these: (1) That the petition alleges that the plaintiff is a 'resident' of the state of Kansas, instead of a citizen; (2) that the bond for removal names no penal sum of money.
That the first objection is well taken is so well settled by adjudicated cases that it is unnecessary to cite authorities. The defendant interposes an application to amend its petition in this respect. It has been repeatedly held by the supreme court of the United States that, when there is a want of jurisdictional averments in the record, this court gets no jurisdiction, and no amendment can be allowed. Crehore v Railway Co., 131 U.S. 242, 9 Sup.Ct. 693; Jackson v Allen, 132 U.S. 27, 10 Sup.Ct. 9; Stevens v Nichols, 130 U.S. 230, 9 Sup.Ct. 518; De Loy v Insurance Co., 59 F. 320; Railway Co. v. Twitchell, 8 C.C.A. 237, 59 F. 727. On the other hand, when the averments are sufficient to confer jurisdiction, but are imperfectly stated, an amendment may be allowed. Carson v. Dunham, 121 U.S. 427, 7 Sup.Ct. 1032; Glover v. Shepperd, 15 F. 833. In the first part of this petition for removal, is this averment: 'That the controversy in said suit is between citizens of different states, and that the petitioner, the defendant in the above-entitled suit, was at the time of the commencement of this action, and still is, a corporation organized and doing business under the laws of the state of Illinois, with its chief place of business at Chicago, and a...
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