Opinion
September Term, 1890.
Removal of Causes to United States Courts — Citizenship — Residence — Jurisdiction.
1. In order that the jurisdiction of the United States Circuit Court may attach to an action pending in a State court, if the jurisdiction depends on the diverse citizenship of the parties, it must affirmatively and distinctly appear from the record or petition that the plaintiff and defendant therein were citizens respectively of different States at the time the action was commenced, as well as at the time application for removal was made.
2. Diverse citizenship will not be inferred from the fact stated, that the parties were residents of different States.
3. Residence does not imply citizenship for the purpose of giving such jurisdiction.
MOTION to remove cause to United States Circuit Court, heard by Graves, J., at October Term, 1889, of DURHAM.
W. W. Fuller for plaintiff.
J. W. Hinsdale and J. S. Manning for defendant.
In this action, at the appearance term, the plaintiff filed his complaint, and the following is a copy of the first paragraph thereof:
"The plaintiffs, complaining of the defendant, allege:
"1. That C. M. Herndon is a resident of the State of North Carolina and of Durham County; that G. W. S. Loucks, W. H. Wheeler, and P. H. Glatfeller are residents of the State of Pennsylvania, and that defendant is a corporation, duly organized and doing business in said State of North Carolina, and was such corporation, engaged in said business, at the time hereinafter mentioned, said corporation having been formed, as plaintiffs believe, under the laws of Connecticut, but having complied with the laws of North Carolina governing fire insurance companies."
At the same term the defendant filed its petition, whereof the following is a copy:
"The defendant respectfully showeth to the court:
"That the plaintiff C. M. Herndon is a citizen, resident of the (192) county of Durham, State of North Carolina, in the Western District of North Carolina of the Circuit Court of the United States; that his coplaintiffs, G. W. S. Loucks and W. H. Wheeler, trading as Loucks Wheeler, and as York Manufacturing Company, and P. H. Glatfeller, are residents and citizens of the State of Pennsylvania; that the defendant is a corporation, organized and existing under the laws of the State of Connecticut, and is a citizen and resident of said State, and not a citizen or resident of the State of North Carolina; that plaintiff had issued from the Superior Court of Durham County, in the State of North Carolina, a summons, citing the defendant to appear in said court on the sixth Monday after the first Monday in September, 1889, it being 14 October, 1889; that plaintiffs have filed their complaint, setting forth a cause of action against the defendant upon a policy of insurance against loss by fire, issued to the plaintiff C. M. Herndon and one R. H. Atwater as partners, and subsequently assigned to the plaintiff C. M. Herndon, upon which policy, the property therein insured alleged to be destroyed by fire, the plaintiffs sue to recover in said State court of the defendant in the sum of $2,500, principal money, exclusive of interest and costs.
"Wherefore, defendant petitions and prays that said cause be removed to the Circuit Court of the United States for the Western District of North Carolina, according to law."
This petition signed by counsel and sworn by petitioner's agent.
The court denied the motion for an order of removal, and the defendant, having excepted, appealed to this Court.
It is settled by many (193) authoritative adjudications that a civil action pending in a State court, as to which the jurisdiction of the Circuit Court of the United States cannot arise or attach unless the parties, plaintiff and defendant therein, respectively, are citizens of different States, is not removable into such circuit court unless such diverse citizenship shall distinctly appear to have existed at the time when the action began, as well as when the removal was applied for, and it must appear affirmatively from positive averments in the petition for removal, or likewise affirmatively and with equal distinctness in the record, or it may appear from what appears in the petition and the record taken together. Gibson v. Bruce, 108 U.S. 561; Grove v. Ins. Co., 109 U.S. 278; Railway v. Snow, 111 U.S. 379; Steamship Co. v. Tugman, 106 U.S. 118; Akers v. Akers, 117 U.S. 197; Hancock v. Holbrook, 112 U.S. 229; Stevens v. Nichols, 130 U.S. 230; Cuhose v. R. R., 131 U.S. 240; Jackson v. Allen, 132 U.S. 27; Blackwell v. R. R., post, 217.
It does not appear from the petition that the diverse citizenship of the parties therein alleged existed at the time the action began — it was simply alleged as existing at the time the petition was filed. This is not sufficient. Stevens v. Nichols, supra; Blackwell v. Moorman, supra. Nor does such diverse citizenship appear from the record. It is alleged in the complaint simply that the plaintiffs are residents of the States mentioned. But this does not imply that they are citizens of those States, and citizenship thereof must be alleged or appear in some way sufficiently. The petition alleges citizenship at the time the petition was filed. But it may be that the parties acquired such citizenship after the action began and with the view to raise the jurisdiction of the circuit court. Nor can the positive affirmative allegation of citizenship in the petition for removal help or enlarge the allegation of mere residence (194) in the complaint, because residence does not imply citizenship for the purpose of giving such jurisdiction. Moreover, the allegation of the residence of the parties in the complaint was not necessary in the pleading in the State court, nor was it intended to thereby allege citizenship — it was merely descriptive of the parties and intended to identify them — it might have been omitted altogether. It cannot be inferred that the purpose was to allege citizenship and not mere residence. Parker v. Overman, 18 Howard (U.S.), 137; Robertson v. Cease, 97 U.S. 646; Grose v. Central Ins. Co., 109 U.S. 278.
Inasmuch as it did not appear from the petition for removal of the action, nor from the record of the latter, that the diverse citizenship of the parties necessary to give the Circuit Court of the United States jurisdiction thereof existed at the time the action began, the court properly denied the petitioner's motion. there is no error.
Affirmed.
Cited: S. c., 108 N.C. 649.