95 U.S. 183 (____)


Supreme Court of United States.

Attorney(s) appearing for the Case

Mr. W.F. Cogswell for the plaintiff in error.

Mr. J. Hubley Ashton, and Mr. Nathaniel Wilson, contra.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

The application for removal in this case was made under sect. 12 of the Judiciary Act of 1789. 1 Stat. 79. That section, so far as it is important for the determination of this case, reads as follows: —

"If a suit be commenced in any State court ... by a citizen of the State in which the suit is brought against a citizen of another State, ... and the defendant shall, at the time of entering his appearance in such State court, file a petition for the removal of the cause for trial into the next Circuit Court, ... it shall then be the duty of the State court to ... proceed no further in the cause."

Clearly this has reference to the citizenship of the parties when the suit is begun; for the language is, "If a suit be commenced by a citizen of the State in which the suit is brought against a citizen of another State, the defendant may, when he enters his appearance, petition for its removal." The phraseology employed in the acts of 1866, 14 Stat. 307, 1867, id. 558, and 1875, 18 id. 470, and in the Revised Statutes, sect. 639, is somewhat different, and we are not now called upon to give a construction to the language there used. As to the act of 1789, we entertain no doubt in this particular.

This right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute. His petition for removal, when filed, becomes a part of the record in the cause. It should state facts, which, taken in connection with such as already appear, entitle him to the transfer. If he fails in this, he has not, in law, shown to the court that it cannot "proceed further with the cause." Having once acquired jurisdiction, the court may proceed until it is judicially informed that its power over the cause has been suspended.

It remains only to apply this rule to the facts as they appear in this record. The suit was commenced June 1, 1867. At that time there was nothing in the pleadings or process to indicate the citizenship of the plaintiff. The defendant, in its petition for removal, bearing date June 11, simply stated that the plaintiff is — that is to say, was at that date — a citizen of New York. This certainly is not stating affirmatively that such was his citizenship when the suit was commenced. The court had the right to take the case as made by the party himself, and not inquire further. If that was not sufficient to oust the jurisdiction, there was no reason why the court might not proceed with the cause. We think, therefore, that the Court of Appeals did not err in its decision.

Judgment affirmed.


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