Zebert v. Hunt

• Decision Date: 06 May 1901
• Citation: 108 F. 449
• Parties: ZEBERT v. HUNT.
• Court: United States Circuit Court, District of Indiana

108 F. 449

ZEBERT v. HUNT.

United States Circuit Court, D. Indiana.

May 6, 1901

A. W Hatch, Roscoe Kimple, and Blacklidge, Shirley & Wolf, for plaintiff.

Brown &amp Geddes and C. A. Schmetteau, for defendant.

BAKER District Judge.

This is an action brought in the circuit court of Howard county Ind., by Peter Zebert against Samuel Hunt, receiver, for the recovery of $20,000 as damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence and carelessness of the receiver and his servants. The defendant seasonably filed his petition, with a proper bond, for the removal of the action from the state court into this court. The application was sustained, and the action is now pending here. The plaintiff moves the court to remand the action to the state court on the ground that the petition does not show the requisite facts to authorize this court to entertain jurisdiction. This question must be determined solely upon the facts stated in the petition for removal and the record. The jurisdictional facts contained in the petition are stated in these words:

'That the controversy herein is between citizens of different states, to wit, the plaintiff, Peter Zebert, who was at the time of the commencement of this suit, and still is, a citizen and resident of this, the state of Indiana, and your petitioner, the defendant herein, who was at the time of the commencement of this suit, and still is, a citizen and resident of the state of Ohio.'

The plaintiff's contention is that the above statement is insufficient, because it is not alleged that the defendant was, at the time the suit was begun, and still is, a nonresident of the state of Indiana. When the removal is sought on the ground of diverse citizenship, it must be made to appear by the petition for removal or elsewhere in the record that such diversity of citizenship existed at the time the suit was begun, as well as at the time the removal is sought; and it must further be made to appear that the defendant was, when the suit was begun and when the removal is sought, a nonresident of the state where the suit was originally brought. Certain propositions are too thoroughly settled to justify any citation of authority. Among these are: (1) The courts of the United States are courts whose jurisdiction in respect of parties and subject-matter is solely conferred by the statutes of the United States, and there is no presumption in favor of their jurisdiction when it is directly drawn in question. Hence, when the question of their jurisdiction is directly presented, it cannot be sustained unless the record affirmatively discloses a cause of action within their statutory jurisdiction. (2) The judiciary act of 1887, as re-enacted and re-enrolled in 1888, was intended to contract the jurisdiction of the circuit courts of the United States in respect of original as well as removed causes of action. (3) Jurisdiction of no removed cause of action cannot be maintained unless every fact necessary to confer jurisdiction is affirmatively shown either in the petition for removal or elsewhere in the record. It is not, however required that the existence of the jurisdictional facts should be shown in any set form of words. If the jurisdictional facts are shown by direct and positive averment in the language of the statute, it is uniformly agreed that it discloses a cause within the jurisdiction of the court. It is insisted, however, that nothing short of this strictness will suffice. It is true that the jurisdiction of the court cannot be sustained by argument, inference of fact, or intendment. But it is equally true that, when facts are disclosed in the petition for removal or elsewhere in the record which conclusively prove the existence of the requisite jurisdictional facts, it will be sufficient. When facts are alleged in the petition or elsewhere in the record which establish, as a necessary legal conclusion therefrom, the existence of the requisite jurisdictional facts, it is unnecessary to do more. In such a case it would be a work of supererogation to allege the facts so proven in the language of the statute. ...