Murphy v. Payette Alluvial Gold Co.

• Decision Date: 12 December 1899
• Docket Number: 2,594.
• Citation: 98 F. 321
• Parties: MURPHY v. PAYETTE ALLUVIAL GOLD CO., Limited.
• Court: U.S. District Court — District of Oregon

98 F. 321

MURPHY v. PAYETTE ALLUVIAL GOLD CO., Limited.

No. 2,594.

United States Circuit Court, D. Oregon.

December 12, 1899

Zera Snow, for plaintiff.

W. A Cleland, for defendant.

GILBERT Circuit Judge.

Motion is made to remand this cause to the circuit court of the state of Oregon for Malheur county, whence it was removed to this court. The plaintiff sued upon several causes of action one of which arose in his favor, and four of which were assigned to him by others. The amount involved in the first cause is not sufficient to confer jurisdiction, but the sum of all the demands exceeds $2,000. The petition for removal alleged that the plaintiff was then, as well as at the commencement of the action, a citizen of the state of Oregon and that the defendant was at said dates an alien corporation created under the laws of Great Britain and Ireland. The complaint had set forth the facts concerning the four assigned causes of action, and the names of the respective assignors, but neither in the complaint nor in the petition was there any averment concerning the citizenship of such assignors. After the motion to remand came on for hearing, an application was made on behalf of the defendant for leave to file in this court an amended petition showing that the citizenship of the assignors of the assigned claims was such that the case was one for removal. There can be no doubt that upon the record, together with the petition which was filed in the state court, no cause for removal was presented, and that the jurisdiction of the state court could not be thereby devested. It was necessary to show affirmatively that the citizenship of the assignors of the assigned claims were diverse from that of the defendant, or that they were not aliens. In Parker v. Ormsby, 141 U.S. 81, 85, 11 Sup.Ct. 913, 35 L.Ed. 656, the court said:

'The authorities we have cited are conclusive against the right of the plaintiff to maintain this suit in the court below unless it appeared that the original payee, Lamb, could have maintained a suit in that court upon the note and coupons. Consequently, it was necessary that the record should, as it does not, disclose his citizenship.'

But it is contended that inasmuch as, in fact, the citizenship of the assignors was such that the case was properly removable, their citizenship can now be shown by an amended petition filed in this court. This contention leads to the inquiry, what is the power of this court to permit amendments to the petition for removal after the cause has been docketed herein? In Crehore v. Railway Co., 131 U.S. 240, 9 Sup.Ct. 692, 33 L.Ed. 144, the right of the circuit court to amend the petition was denied in a cause which had been removed on the ground of diverse citizenship, on a petition which alleged the citizenship of the parties at the time when it was filed, only, and not at the time of the commencement of the action. The court said:

'For the only mode provided in the act of congress by which the jurisdiction of the state court of a controversy between citizens of different states can be devested is by presenting a petition and bond in that court showing, in connection with the record, a case that is removable. The present motion, in effect, is that such amendment of the record may be made in the circuit court as will show that this case might have been removed from the state court,-- not that, in law, it has ever

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