Rones v. Katalla Co.
| Decision Date | 10 November 1910 |
| Docket Number | 1,630. |
| Citation | 182 F. 946 |
| Parties | RONES v. KATALLA CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stevenson & Sorley, for plaintiff.
Bogle & Spooner and F. T. Merritt, for defendant.
This case in its present aspect involves but one question: Is the defendant entitled to have the judgment against it vacated and the case remanded to the state court?
The action was begun in the superior court of King county, Wash and is for the recovery of $18,000 damages for personal injuries alleged to have been sustained by the plaintiff while employed by the defendant in construction work at a place called Island Channel in the district of Alaska. Within the time allowed by law the defendant filed in the superior court its petition for the removal of the cause to this court. In the petition the defendant alleges that the controversy is between citizens of different states; that the plaintiff was at the time of the commencement of the action and still is a citizen of the state of Washington and a resident of the Western district thereof, and that the defendant is and during all said times was a corporation organized and existing under the laws of the state of New York. An order of removal was duly made by the state court and the transcript of the record was filed and docketed in this court on February 10, 1910. The sufficiency of the petition for removal, assuming its allegations of fact to be true, is not now, and has not been, questioned by either party. No motion to remand has at any time been made by the plaintiff. On June 17, 1910, the cause was put on trial before the court and a jury and the plaintiff became a witness in his own behalf. On cross-examination by defendant's attorneys, he stated that he was born in Norway, and, although he had declared his intention to become a citizen, he had not as yet completed his naturalization. Thereupon defendant orally moved the court to remand the case for want of jurisdiction. The motion was denied. The trial resulted in a verdict in plaintiff's favor for $3,000, upon which judgment was thereafter entered. On July 14, 1910, a written motion to vacate the judgment and remand the cause was filed by the defendant--
'upon the ground that it appears from the petition for removal of said cause and from the testimony of said plaintiff upon said trial that the proceedings to remove said cause from said superior court of King county, Wash., to this court were ineffectual for that purpose, and that this court never acquired jurisdiction of said cause and has no jurisdiction thereof.'
There is no doubt that a suit brought in a state court by an alien against a nonresident citizen of another state, or against a corporation incorporated under the law of another state, may be removed by the defendant to the Circuit Court. Barlow v. Chicago Railway Co., 164 F. 765; Sherwood v Newport Co., 55 F. 1; Stalker v. Pullman Co., 81 F. 989.
Where the defendant removes a suit and the plaintiff does not seasonably raise the objection that the suit cannot be maintained in the Circuit Court of that particular district, the court will retain jurisdiction of the cause, if it be a cause of the class of which the Circuit Courts of the United States in general are given jurisdiction, though neither party resides in the district. In re Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904.
The defendant urges that as the jurisdiction on removal was invoked by reason of an allegation of diverse citizenship which the plaintiff's answers to its questions at the trial showed to be untrue, the jurisdiction cannot be retained, though it appears that the suit is between an alien and a citizen. I am unable to assent to this proposition. The petition for removal is concededly sufficient on its face to divest the jurisdiction of the state court and to remove the cause to this court. The plaintiff by seasonably traversing the averments of fact in the petition could have had a trial upon the issue so raised, and the burden in that case would have been upon the defendant to establish the truth of the facts alleged. No denial of those allegations or any of them has ever been made and the plaintiff has acquiesced in the removal of the cause to this court. Clearly the defendant having itself secured the removal, is estopped to deny the allegations of fact upon which that removal was obtained. The trial of the action upon the merits was not for the purpose of determining the truth of those allegations, and the evidence there taken cannot be set up by the defendant as countervailing its own statements in the petition, upon which no issue...
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