A petition for removal which alleges the diverse citizenship of
the parties in the present tense is defective, and if it does not
appear in the record that such diversity also existed at the
commencement of the action, the cause will be remanded to the
circuit court with directions to send it back to the state court,
with costs against the party at whose instance the removal was
The case as stated by the Court was as follows:
This action was commenced on the 25th day of July, 1881, in one
of the courts of Missouri by the defendant in error against the
Texas and Atlantic Refrigerator Car Company, a corporation of that
state, Robert S. Stevens and Henry D. Mirick. Its object was to
reach, and have applied in satisfaction of a judgment obtained by
the plaintiff against the car company, the several amounts due from
Stevens and Mirick on their subscriptions of stock in that
Stevens and Mirick filed a joint petition for the removal of the
case into the circuit court of the United States upon the ground of
the diverse citizenship of the parties. The allegation in the
petition was that the plaintiff "
is a citizen of the
Missouri," and that the defendants "
are not citizens
Page 130 U. S. 231
of the Missouri, but are citizens of the State of New York."
The state court made an order for the removal of the case to the
circuit court of the United States. In the latter court, the
necessary pleadings having been filed, the case was tried,
resulting in a verdict and judgment against Stevens for the sum of
$5,027.33, and against Mirick for the sum of $627.41. The court
having overruled a motion for new trial and also a motion in arrest
of judgment, Stevens has brought the case here for review.
No question was made in the court below or in this Court as to
the right of Stevens and Mirick to remove the case from the state
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
1. It was held in
Robertson v. Cease, 97 U. S.
97 U. S. 649,
upon writ of error from a circuit court of the United States,
"in cases where jurisdiction depends upon the citizenship of the
parties, such citizenship, or the facts which in legal intendment
constitute it, should be distinctly and positively averred in the
pleadings, or they should appear affirmatively and with equal
distinctness in other parts of the record."
Mansfield, Coldwater &c. Railway v. Swan,
111 U. S. 379,
111 U. S. 382;
Hancock v. Holbrook, 112 U. S. 231;
Thayer v. Life Association, 112
U. S. 719;
Continental Ins. Co. v. Rhoads,
119 U. S.
2. The case was not removable from the state court unless it
appeared affirmatively in the petition for removal or elsewhere in
the record that at the commencement of the action, as well as when
the removal was asked, Stevens and Mirick were citizens of some
other state than the one of which the plaintiff was at those
respective dates, a citizen.
Page 130 U. S. 232
Bruce, 108 U. S. 562;
Houston & Texas Central Railway v. Shirley,
111 U. S. 358,
111 U. S. 360;
Mansfield, Coldwater &c. Railway v. Swan, 111 U.
111 U. S. 381;
Akers v. Akers, 117 U. S. 197.
3. The petition for removal does not allege the citizenship of
the parties except at the date when it was filed, and it is not
shown elsewhere in the record that Stevens and Mirick were at the
commencement of the action, citizens of a state other than the one
of which the plaintiff was at that date, a citizen. The court
therefore cannot consider the merits of the case.
Watertown, 128 U. S. 586;
Morris v. Gilmer, 129 U. S. 315,
129 U. S.
The judgment is reversed upon the ground that it does not appear
that the circuit court had jurisdiction, and the case is remanded
to that court with directions to send it back to the state court,
the plaintiff in error to pay the costs in this Court and in the
Mansfield &c. Railway v. Swan,
111 U. S. 379.