A suit cannot be removed from a state court, under the act of
1875, unless the requisite citizenship of the parties exists both
when the suit was begun and when the petition for removal was
Motion to dismiss or affirm. The only point at issue was whether
the case was one which could be removed from the state court. When
the suit was brought in the state court, the appellant and the
appellee were citizens of different states. The defendant at the
term of the court at which the cause could be first tried, and
before the trial thereof, moved for its removal to the federal
court, and after hearing an order of removal was made in the state
court. The plaintiff then in the federal court moved to remand it
on the ground that at the time of the filing of the motion to
remand, and at the time of the application for removal, the
plaintiff and defendant were both citizens of the same state. The
court below heard the parties on this motion, and granted it, from
which order an appeal was taken.
Page 108 U. S. 562
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
In this case, the court below decided that under the Act of
March 3, 1875, c. 137, there could not be a removal to the circuit
court of the United States of a suit in a state court between
parties who were citizens of different states when the suit was
begun if, when the petition for removal was filed, the parties were
all citizens of the same state. To reverse an order remanding a
suit on that ground, this appeal was taken.
Under the Judiciary Act of 1789 (sec. 12), it was held, in
Insurance Company v. Pechner, 95 U. S.
, that there could not be a removal unless the
necessary citizenship existed when the suit was begun. That act
provided only for a removal on the application of the defendant
when the plaintiff was a citizen of the state in which the suit was
brought, and the defendant was required to file his petition for
removal at the time of entering his appearance in the state court.
Under such circumstances changes of citizenship, after the suit was
begun and before the time for applying for a removal, would not
The act of 1875 is radically different from any which preceded
it. Under that act, either party may petition for removal, and
neither party need be a citizen of the state in which the suit was
brought. The material language is as follows:
"That any suit of a civil nature at law or in equity now
Page 108 U. S. 563
or hereafter brought in any state court, . . . in which there
shall be a controversy between citizens of different states, . . .
either party may remove said suit into the circuit court of the
United States for the proper district."
In order to obtain the removal, a petition therefor must be
filed in the state court at or before the term at which the cause
could be first tried, and before the trial. In the present case,
the petition was not filed until nearly two years after the
commencement of the suit.
The construction of the act is by no means free from doubt, but
on full consideration we are of opinion that the requirement of the
old law, that the necessary citizenship should exist when the suit
was brought, was not abolished. We cannot believe it was intended
to allow a party to deprive a state court of the jurisdiction it
has once rightfully acquired over him by changing his citizenship
after a suit is begun, and that would be the effect of the law if
the right of removal is made to depend only on the citizenship
existing at the time a removal is applied for. But we are also of
opinion that because of the extension of the time for applying for
removal, and because neither party need be a citizen of the state
in which the suit is brought and either party may apply, it was the
intention to provide that the controversy should be between
citizens of different states at the time of the removal. In this
way the jurisdiction of the circuit court of the United States will
only attach when there shall be a controversy between citizens of
different states at the time the suit is transferred, and the right
to the transfer will depend on the citizenship when the suit was
begun and when the petition for removal is filed.
We therefore hold that a suit cannot be removed from a state
court under the act of 1875 unless the requisite citizenship of the
parties exists both when the suit was begun and when the petition
for removal is filed.
The order remanding the cause is affirmed.