Wilbur v. Red Jacket Consol. Coal & Coke Co.

• Citation: 153 F. 662
• Decision Date: 13 April 1907
• Docket Number: 125.
• Parties: WILBUR v. RED JACKET CONSOL. COAL & COKE CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

153 F. 662

WILBUR v. RED JACKET CONSOL. COAL & COKE CO.

No. 125.

United States Circuit Court, S.D. West Virginia.

April 13, 1907

This action was brought by the plaintiff in the circuit court of Mingo county, W. Va., and the defendant, within the time prescribed therefor by law, filed in that court its petition for the removal of the cause to this court, alleging in said petition that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000; that the plaintiff at the commencement of the suit was, and still is a citizen of the state of Kentucky; and that the defendant corporation at the commencement of the suit was and still is a citizen of the state of Virginia, etc. This petition was accompanied by the bond prescribed by statute, and thereupon the circuit court of Mingo county entered an order removing the cause to this court and declining to proceed further therein. On the first day of the next term of this court sitting at Huntington, the cause was duly docketed, and on the same day the plaintiff by his counsel moved the court to remand the cause to the circuit court of Mingo county, upon the ground that upon the showing of the petition the suit should be remanded in accordance with the decision of this court in Foulk v. Gray (C.C.) 120 F. 156, because under the showing of the petition for removal neither the plaintiff nor the defendant was a citizen or resident of the state of West Virginia. Thereupon the defendant asked leave of the court to amend the petition for removal so as to show that the plaintiff, Leo H. Wilbur, at the commencement of this suit was, and still is, a citizen of West Virginia residing at Corbin post office, Kanawha county, in the Southern district of West Virginia, and in support thereof filed the affidavit of J. M. Boling as to the fact of plaintiffs' residence and citizenship, and the affidavit of Wells Goodykoontz, Esq., as to the misinformation under which he had prepared the original petition in which it was stated that plaintiff was a citizen of Kentucky. To the amendment of the petition for removal the plaintiff objected and the case is now before me upon the motion to remand and the petition asking leave to amend the original petition for removal.

Stokes & Bronson, for plaintiff.

Sheppard, Goodykoontz & Scherr, for defendant.

KELLER District Judge.

The sole question to be determined in this case is as to whether a petition of removal is amendable as to any of its statements of fact at the discretion of the court, and, if so, whether this is an instance in which the court should exercise its discretion to permit such amendment.

In the first place, I may say that almost all the Circuit Courts have held that the allegations of the petition for removal as originally filed in this case are sufficient to give absolute jurisdiction to hear and determine the cause. I have held that such allegations were sufficient to give such jurisdiction in the absence of any motion by plaintiff to remand the case. In this case such motion is made, and thereupon the defendant asks leave to amend his petition so as to show more clearly the facts making this case one legally removable to this court, and thereupon files an affidavit alleging that the plaintiff at the commencement of the suit was and still is a citizen of the state of West Virginia, and a resident of the Southern district thereof.

What is the nature and office of a petition for removal? The Supreme Court of the United States, in the case of Kinney v. Columbia Savings & Loan Association, 191 U.S. 78, 24 Sup.Ct. 30, 48 L.Ed. 103, speaking by Justice Brewer, says:

'It is frequently stated that amendments are within the discretion of the court, and that, unless it appears that the discretion has been abused, no error is shown. A petition and bond for removal are in the nature of process. They constitute the process by which the case is transferred from the state to the federal court.'

The court goes on to quote the familiar provisions of law authorizing the amendment of process, pleadings, and other proceedings in courts of the United States, found in sections 948 and 954, Rev. St. U.S. (U.S. Comp. St. 1901, pp. 695, 696). In the Kinney Case the allegation as to citizenship was as follows:

'That the controversy in said suit is between citizens of different states, and that the defendant in the above-entitled suit was at the time of the commencement of the suit, and still is, a resident and a citizen of the city of Denver, and state of Colorado.'

It will be seen that in this case, while the citizenship of the defendant was fully and accurately stated, the citizenship of ...