Miller v. Soule

• Decision Date: 30 March 1915
• Docket Number: 1389.
• Citation: 221 F. 493
• Parties: MILLER v. SOULE et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

221 F. 493

MILLER v. SOULE et al.

No. 1389.

United States District Court, E.D. Pennsylvania.

March 30, 1915

[Copyrighted Material Omitted]

Kirkpatrick & Maxwell, of Easton, Pa., for plaintiff.

Smith Paff & Laub, of Easton, Pa., and Frank P. Prichard, of Philadelphia, Pa., for defendants.

DICKINSON District Judge.

This case originated in a bill filed in the court of common pleas of Northampton county, Pa., sitting in equity. A petition for removal was filed by the defendants within the time limited by law, together with a bond. On this petition the state court made an order, based upon a finding that the petitioners had complied with all the requirements of the statute, directing that no further proceedings be taken in the cause and that it be removed to this court as provided by law. To this order the plaintiff entered an objection. The prothonotary of said court of common pleas thereupon made up and certified a copy of the record. The petition for and order of removal was filed and made February 1st, and the above certificate and what purports to be the record was filed in this court on March 1, 1915. The plaintiff thereupon filed in this court a motion to remand the cause to the court from which it was transferred. The general ground for removal is that the proceedings are irregular, and not in conformity with the requirements of the acts of Congress, and not effective to justify the removal. In order to save repetition, the specific grounds for remanding set forth will be stated in connection with their discussion.

Paragraph 9 of the motion avers a noncompliance with the provisions of the Judicial Code, in that there is no proper averment of diverse citizenship, due to the omission to state that the defendants are nonresidents of the state of Pennsylvania. The provision of the Judicial Code is that a cause may be removed by the defendants therein, they 'being nonresidents of that state.' The averment in the present petition for removal is that the defendants are 'residents of the' state of New Jersey. The argument in support of the motion to remand is based upon the proposition that the petition must comply with the statute by positive averments, which leave nothing to inference, and that an averment that the defendants are residents of New Jersey is not a positive, but an inferential, averment that they are nonresidents of Pennsylvania. This argument is supported by the ruling in Fife v.

Whittell (C.C.) 102 F. 537. Judicial sanction is also found for the opposing view in the cases of Zebert v. Hunt (C.C.) 108 F. 449, and Lawrence v. Railroad (C.C.) 165 F. 241.

The reasoning upon which these latter rulings are based has our acceptance. Jurisdiction depends upon a fact. The fact, it is true, being a jurisdictional fact, should appear. The fact, however, for its expression is not limited to any mere formal verbiage, and it is difficult to accept the thought of residence in one place without excluding the thought of residence elsewhere. So far as affects the instant case the record of the state court makes clear the fact both of the New Jersey residence of the defendants and their nonresidence in Pennsylvania, because this fact was made the basis of an application for extraterritorial service. The petition for removal in the present case can therefore be upheld in this particular without conflict with the ruling in Fife v. Whittell.

Another ground for remanding is advanced in the second and fourth paragraphs of the motion. Section 29 of the Judicial Code requires the filing of a bond, with condition that the record of the cause in the state court shall be entered in this court within 30 days from the date of the filing of the petition. The provision in force before the enactment of the present Code was that the condition of the bond should be that the record would be entered before the first day of the then next session of this court. The bond in the present case followed the language of the old Code. It happens to be the fact, however, that the record was entered here within 30 days. Counsel for plaintiff, in support of this ground for remanding, cites the case of Missouri Ry. Co. v. Chappel (D.C.) 206 F. 688.

Some general observations may be here interpolated in order to throw light upon this feature of the discussion and to shorten that bearing upon the other grounds for remanding relied upon. It is, of course, undeniable that proceedings in the state court may be flagged and the cause removed to the courts of the United States, to be there disposed of, when the jurisdictional facts for such procedure exist. It is equally clear, however, that the jurisdictional facts must have a pleading as well as an actual existence. The laws of the United States not only give the right of removal, but prescribe the procedure under which the right must be pursued. These forms of procedure it is likewise evident must be followed. Before any one can lay claim to a removal as a right, the facts upon which that right is based must exist. They must further be alleged of record through appropriate pleadings, and must be accompanied by all the formalities which the procedure provisions of the law require. The law, of course, contemplates that where there is the conjunction of all these things that the proceedings will end in the state court and the cause be proceeded with in the courts of the United States to final determination. After this transfer has been perfected, however, should it transpire to the satisfaction of the court to which the cause has been thus transferred that for any reason the courts of the United States do not have jurisdiction to try the case, it should then be remanded to the court from which transferred.

Where the jurisdictional facts exist and are properly pleaded, and all the requirements of the law are met, the legal consequence is that the cause is in contemplation of law removed, and thereafter all further proceedings in the state court become null and void. In this sense the workings of the system are automatic and the cause is ipso facto removed. It is easily possible, however, that there may be a difference of opinion between the parties, or indeed between the courts of the state and of the United States, whether this legal consequence in a given case follows. It is supposable that a party plaintiff, for instance, may dispute the removability of the cause and deny the legal conclusion above stated. In such a case certain events may follow and certain consequences flow. The plaintiff may proceed with his cause in the state court, or attempt to do so. Such action on his part in the state court may be met by a counter action by the defendant in the courts of the United States, seeking to enjoin the plaintiff from the further prosecution of his case in the state court. In this supposed condition of things the direct question of the right of the defendant to have the cause removed is...