Imágenes de páginas

plaintiffs, where he claims less than the jurisdiciional amount, and no others have joined, he cannot remove the

suit. 17

1 Falls Wire Manuf. Co. v. Broderick, 6 Fed. Rep. 654. Contra: Clarkson v. Manson, 4 Fed. Rep. 257.

2 Keith v. Levi, 2 Fed. Rep. 743. 3 Clarkson v. Manson, 4 Fed. Rep. 257; McGinnitz v. White, 3 Dill. 350. 4 Culver v. Crawford Co., 4 Dill. 23). 5 Culver v. Crawford Co., 4 Dill. 239. 6 N. Y. Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204. 7 Clarkson v. Manson, 18 Blatchf. 413-4; Fed. Rep. 257.

8 Kanou e v. Martin, 15 How. 198; Stanley v. Chicago R. I. & P. R. Co., 62 Mo. 568; Beery v. Same, 64 Mo. 533. Contra: People v. Judges, 2 Denio, 197.

9 Carrick v. Landman, 20 Fed. Rep. 209. 10 Ante, p. 178, sec. 93 e. 11 Banigan v. Worcester, 30 Fed. Rep. 392. 12 Nashville & N, R. Co. v. Roehling, 11 Ill. App. 264. 13 Whitman v. Hubbell, 39 Fed. Rep. 81. 14 Louisville & N. R. Co. v. Roehling, 11 Ill. App. 261. 15 Green v. Brooks, 28 Fed. Rep. 215. 16 Caswell v. Caswell, 9 West. 154, 120 Ill. 377; Bowman v. Bowman, 30 Fed. Rep. 849.

17 Massa v. Cutting, 24 Blatchf. 239.

$ 93 m. Amount in controversy under Act of 1887, $2,000, exclusive of interest and costs.By the Act of 1887 the matter in dispute must exceed the sum of $2,000, as well in cases removed as in other cases. An action for the recovery of money, with interest, cannot be removed from a State court, except where the amount in dispute exceeds $2,000, exclusive of interest and costs. 2 A petition for the removal of an action for specific performance of a contract for a purchase of land must aver that it exceeds $2,000 exclusive of interest and costs.3

Where the petition for removal states that the action is upon an alleged fraudulent mortgage and for the cancellation of $45,000 of bonds secured thereby, and that the amount in controversy exceeds $25,000, exclusive of interests and costs, jurisdiction is sufficiently shown.

1 Ex parte Pennsylvania, 137 U. S. 451. 2 Lazensky v. Supreme Lodge Knights of Honor, 32 Fed. Rep. 417. 3 Weber v. Travelers' Ins. Co., 45 Fed. Rep. 657. 4 Chambers v. McDougal, 42 Fel. Rep. 631,


§ 93 n. Amount in controversy under right of set-off. -Courts are in direct conflict on the question whether or not, on a motion to remand, the amount in dispute is to be determined by the plaintiff's demand, or by the demand of the defendant, where he sets up a counterclaim.The amount in dispute to determine the right to remove a case from a State to a Federal court is fixed by plaintiff's claim alone, without regard to defendant's counter claim.2 But it is held that where a counterclaim was interposed for damages for fraudulent representations in regard to the subject matter, to an amount in excess of the jurisdictional amount, the suit was within the jurisdiction of the circuit court.3 If action is brought for less than the jurisdictional amount and a counterclaim is pleaded exceeding that amount defendant is entitled to remove the suit. 1

The statutes regulating the right of set. off may be effective to determine the sum or value of “the matter in dispute.” If the suit be one appealed from a justice of the peace to the State circuit court, but under the statute of the State defendant can recover no more than $500 in that court, it is that sum which is the “matter in dispute," and the Federal court can have no jurisdiction by removal under the Act of 1875, section 2.5

1 Dill. Rem. Canses, secs. 51, 64; West v. Aurora, 73 U. S. 139; Ryan v. Bindiey, 68 U. S. 66; Hilton v. Dickinson, 108 U. S. 165; Bradstreet Co. v. Higgins, 112 U. S. 227; New York I. & P. Co. v. Mllburn Gin & Machine Co., 35 Fed. Rep. 224; Whelan v. N. Y. etc. R. Co. (Ohio), 38 Fed. Rep. 15; Bennett v. Devine, 45 Fed. Rep. 705.

2 La Montagne v. T. W. Harvey Lumber Co., 44 Fed. Rep. 645; Gordon v. Longest 41 Ù. S. 97; Kanouse v. Martin, 56 U. S. 193; Falls Wire M. Co. v. Broderick, 6 Fed. Rep. 654.

3 Gold Washing eto. Co. v. Keyes, 96 U. S. 199; Woolridge v. McKenna, 8 Fed Rep. 650: Connor v. Scott, 4 Dill. 242; New Orleans etc. R Co. v. Mississippi, 102 U. S. 135.

4 Clarkson v. Manson, 4 Fed. Rep. 257. See Aurora v. West, 73 U. S. 189; 25 Ind. 148.

5 New York I. & P. Co. v. Milburn Gin & Mach. Co., 35 Fed Rep. 225.

§ 93 o. Removal into circuit courts of newly admitted States. — The right to remove causes pending in the territorial courts of Dakota when the two States of Dakota were admitted to the Union, depends upon the Enabling Act of February 22, 1889, sec. 23, not upon the Act of March 3, 1875, as amended in 1887 and 1888.1 Under the Enabling Act a cause may be removed in which the plaintiff was a citizen of Dakota Territory and the defend


ant a citizen of a State at the beginning of the suit. A case pending on the admission of Montana as a State, of which a State court assumed jurisdiction and made an order from which an appeal was taken, without questioning the jurisdiction of the lower State court, is not removable to a Federal court, under the act of Congress provid. ing for the admission of Montana and other territories.3 The fact that the parties would have been citizens of different States at the commencement of the action, if the Territory had then been a State, does not give a right to remove the cause into a Federal court under the Enabling Act, section 23.4 One who, after the adınission of North Dakota as a State, argued the appeal in a case in the State court of last resort, applied for a reheariug, and, after securing it, applied for and obtained a continuance, cannot thereafter, under the provisions of the Enabling Act, obtain a removal of the case to the Federal court on the ground of diverse citizenship. The right of removal on the ground of citizenship, to a Federal court from a court of South Dakota, of a cause pending when the State was admitted, is to be determined on the hypothesis that the State had been admitted, and the Federal courts established therein, and that plaintiff was a citizen thereof, at the time the action was commenced, if plaintiff was then a citizen of the Territory.6 Citizenship of the parties is not sufficient to authorize the removal to a Federal court of a case pending in a territorial court on the admission of Montana, where at the time the suit was commenced, defendant was a citizen of the State of Minnesota, and the plaintiffs were citizens of Montana Territory, and are now citizens of the State of Montana.? A written request to transfer a cause, not filed until after the parties have voluntarily appeared in a State court and contested a motion in the case, and after compliance with an order made by the State court, is too late to be effective in transferring the cause to the circuit court. An action pending at the time of the admission of Washington, Mont ni, North and South Dakota, between citizens of one of those Territories and of a State, is not removable to a Federal court on the ground of citizenship. And admiralty cause apnealed to, but not docketed in, the su. preme court of Washington Territory prior to the admission of the State into the Union, must necessarily be transferred to the circuit court of the United States, which is, as to all a'miralty causes, successor to the territorial court of original jurisdiction.10 The removal to a Federal court of a suit to set aside a judgment pending in Washington Territory on its admission as a State, does not give the plaintiff any new rights which will sustain such an action, if it could not have been upheld in the State court, because it was not the proper remedy under the State practice. 11 A Federal question in a cause pending on appeal in a court of Washington Territory at the time of its admission need not be shown by the record on appeal, but may be shown by a petition for removal.12 The written request required to be made to the proper court for the removal of a cause pending in a court of Washington Territory when it was admitted as a State should be made to the proper court of the State, and this must order the transfer.13

1 Herman v. McKinney, 43 Fed. Rep. 689.
2 Dorne v. Richmond etc. Co., 43 Fed. Rep. 690.
3 Bluebird Min. Co. v. Murray, 45 Fed. Rep. 388.
4 Dunton v. Muth, 45 Fed. Rep. 390.

5 Gull River Lumber Co. v. Barnes County School District No. 39, 48 N. W. 340.

6 Dorne v. Richmond Silver Min. Co., 41 N. W. 1021.
7 Strasburger v. Beecher, 41 Fed. Rep. 209.
8 Murray v. Bluebird Min. Co., 45 Fed. Rep. 387.
9 Nickerson v. Crook, 45 Fed. Rep. 658.
10 Hamilton v. The Walla Walla, 44 Fed. Rep. 4.
11 Cowley v. Northern P. R. Co., 46 Fed. Rep. 325.
12 Kenyon v. Knipe, 46 Fed. Rep. 309.
13 Kenyon v. Knipe, 46 Fed. Rep. 309.




$ 94. Removal of cause, as governed by subject-matter of action orsuit. $ 94 a.

Cases arising under the Constitution, laws or treaties. § 94 b. Suits involving Federal questions are removable. § 94 c. What not a Federal question. § 94 d. From any State court. § 94 e. Constitutional provisions. § 91 f. Restriction under act of 1887. $ 94 g. Restriction as to nature of suit. $ 94 h. Suits, when not removable, 8 95. Removal of cause as relates to parties. § 95 a. Any other civil suit. $ 95 b. From any State court. § 95 c. Controversy between parties. $ 95 d. Conflicting land grants. § 95 e. Removal by and against the United States government. $ 95 f.

Where State is party to su, § 95 g.

Restriction of right of removal by assignees. § 95 h. Party in representative character. $95 i. Right of substituted party. § 95 j. All proper and necessary parties must be made parties. $ 95 k. Qualification as to citizenship. & 95 1. Necessary parties. § 95 m. Decisions under the acts of 1866, 1867. § 95 n. Where alien is party. 8 95 o. The whole controversy removed. § 95 p. Right to remove restricted to the defendant. $ 95 4. Only non-resident defendants can remove. 8 95 r. Inhabitancy of corporation. § 95 s. Removal must be into the proper district.

$ 94. Removal of cause, as governed by subject-matter of action or suit.—That any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their


[ocr errors]
« AnteriorContinuar »