De La Montanya v. De La Montanya

• Decision Date: 21 December 1907
• Docket Number: 14,451.
• Court: U.S. District Court — Northern District of California
• Parties: DE LA MONTANYA v. DE LA MONTANYA et al.

158 F. 117

DE LA MONTANYA v. DE LA MONTANYA et al.

No. 14,451.

United States District Court, N.D. California.

December 21, 1907

Bishop & Hoefler and Alfred J. Harwood, for the motion.

Knight & Heggerty and Wm. M. Madden, opposed.

VAN FLEET, District Judge.

Motion is made by the plaintiff to remand this cause to the state court on the ground that the petition for removal does not show that the defendant was, at the commencement of the action, a nonresident of the state, and hence that it does not show jurisdiction of the case in this court. The allegation of the petition in that respect is that the petitioner 'was at the time said action was commenced and is now, a resident of the state of New York'; and the objection is that this allegation is not the equivalent of an allegation that petitioner was a 'nonresident' of the state, such as to bring it within the requirement of Removal Act March 3, 1875, c. 137, Sec. 2, 18 Stat. 470 (U.S. Comp St. 1901, p. 509). This objection is supported by reference to the case of Fife v. Whittell, 102 F. 537, decided in this court by Judge Morrow, where, relying upon the authorities there cited, it is explicitly held, under a precisely similar averment, that it is not sufficient to bring the case within the statute; that nothing short of an allegation in the precise language of the statute or its equivalent is sufficient to that end.

The defendant meets this contention by a reference to the later case of Zebert v. Hunt (decided by Judge Baker in the Circuit Court for the District of Indiana) 108 F. 449 where it is quite as explicitly held that an allegation in the language of this petition is sufficient as an allegation of nonresidence, and where Judge Baker refuses to follow Fife v. Whittell. It may be said that the objection is an exceedingly technical one and the sufficiency of the petition upon the point a close question; but, in view of the very strict construction which the provisions of the removal act have from the first received at the hands of the Supreme Court, I am disposed to follow the ruling of Fife v Whittell. Every inference is to be indulged against, and not in favor of, the jurisdiction of this court.

In the present case, however, I am satisfied, from the facts stated in the petition, that but for the particular defect relied upon the petition shows a case within the jurisdiction of the court. It is alleged that the defendant 'was at the time that said action was commenced, and was for many years prior thereto, and is now, a citizen of the republic of France ' This fact, coupled with that of...