Petitions and bonds for removal are in the nature of process.
Where a petition for removal otherwise sufficient contains a
general averment of diverse citizenship with a specific and full
averment of defendant's citizenship and the requisite diverse
citizenship of the plaintiff may also reasonably be inferred from
the record, the circuit court has power, before any action has been
had on the merits in the federal courts or any steps taken in the
state courts after the removal, to permit the petition to be
amended by the addition of specific and complete averments of the
citizenship of the plaintiff.
On August 25, 1899, appellants commenced this suit in the
Supreme Court of Salt Lake County, Utah. By it, plaintiffs sought
an accounting and the cancellation of a deed of trust executed by
them to a trustee for the benefit of the defendant. The complaint
alleged that "the defendant was and now is a corporation organized
and existing under the laws of the State of Colorado." The deed of
trust (copied in the complaint) was executed November 22, 1890, and
purports to be
"between Antoinette B. Kinney and Clesson S. Kinney, her
husband, of the County of Salt Lake and Territory of Utah, parties
of the first part, and Clyde J. Eastman"
named as trustee. It was executed before a notary public in Salt
Lake county.
On September 2, 1899, the defendant filed a petition and bond
for removal to the circuit court of the United States for the
district of Utah. That petition alleged:
"Your petitioner, The Columbia Savings & Loan Association,
respectfully shows to this honorable court that the matter and
amount in dispute in the above-entitled suit exceeds, exclusive of
interest and costs, the sum or value of two thousand dollars. "
Page 191 U. S. 79
"That the controversy in said suit is between citizens of
different states, and that your petitioner, the defendant in the
above-entitled suit, was at the time of the commencement of the
suit, and still is, a resident and a citizen of the City of Denver
and State of Colorado."
On November 28, 1899, the plaintiffs filed a motion to remand
the cause to the state court on the ground, that
"the amount or matter in dispute therein does not, and at the
time said cause was removed from the state court, did not, exceed
the sum or value of $2,000, exclusive of interest and cost."
On the same day, the defendant filed in the circuit court an
answer and cross-complaint, by the latter seeking a foreclosure of
the trust deed. In the cross-complaint it alleged
"that it is a corporation, organized and existing under the laws
of the State of Colorado, and is a citizen of said state, and that
complainants herein are citizens and residents of Salt Lake City,
State of Utah."
On December 30, 1899, the plaintiffs gave notice of a motion to
amend their motion to remand, by adding as a further ground
"that the diverse citizenship of the parties at the time of the
commencement of the suit, and at the time of the removal of said
cause from the state court, does not appear upon the record."
On January 2, 1900, the defendant gave notice of a motion to
amend the paragraph heretofore quoted from its cross-complaint to
read as follows:
"First. That your orator at the time of the commencement of this
suit, was and ever since then, and now is, a corporation organized
and existing under and by virtue of the laws of the State of
Colorado, and a citizen and resident of the City of Denver and
State of Colorado, and that the said plaintiffs, Antoinette B.
Kinney and Clesson S. Kinney at the time of the commencement of
this suit, were, and ever since have been, and still are, citizens
of the State of Utah, and residents thereof, residing at the City
of Salt Lake in the said State of Utah. "
Page 191 U. S. 80
And also notice of a motion to amend the petition for removal by
adding this allegation:
"That the plaintiffs, Antoinette B. Kinney and Clesson S.
Kinney, and each of them, were at the time of the commencement of
this suit, and still are, citizens and residents of the City of
Salt Lake and State of Utah."
On January 6, 1900, the motion to remand was denied, and leave
given to amend the petition for removal and the cross-complaint.
Subsequently the case went to trial in the circuit court, and a
decree was rendered in favor of the defendant for the recovery of
$4,003.45, and the foreclosure of the trust deed. From such decree
an appeal was allowed to this Court upon the single question of
jurisdiction.
MR. JUSTICE BREWER delivered the opinion of the Court.
Had the federal court the power to permit the amendment of the
petition for removal? The suit was removable. Diverse citizenship
in fact existed and the amount in controversy was over $2,000. The
right to remove existed, but the petition for removal was
defective. If it had been sufficient, there would have been no need
of amendment. The question is whether it was so defective as to be
incurable. In other words, was the case one in which the court had
power to permit the facts to be stated in order to secure to the
defendant the removal to which it had a right? By section 1 of c.
866, 25 Stat. 434, jurisdiction is given to the circuit courts of
all suits of a civil nature "where the matter in dispute exceeds,
exclusive of interest and costs, the sum or value of $2,000," and
"in which there shall be a controversy between citizens of
different states." By section 2 of the same act, any such suit
pending in a state court may be removed into the circuit court of
the United States by the defendant or defendants
Page 191 U. S. 81
if nonresidents. The petition for removal, which was duly
verified, alleged the existence of just such a suit. True, this
Court, construing the statute, has held that the difference of
citizenship must exist both at the commencement of the suit and at
the filing of the petition for removal.
Gibson v. Bruce,
108 U. S. 561;
Akers v. Akers, 117 U. S. 197;
Stevens v. Nichols, 130 U. S. 230. But
this does not change the fact that the language of the petition
follows that of the statute in stating the existence of that which
the statute makes the basis of a right of removal.
It is also true that, when a record presented to this Court
fails to show a diversity of citizenship, both when the suit was
commenced and when the petition for removal was filed, a reversal
has been ordered and the case sent back to the circuit court, with
directions to remand to the state court.
Stevens v. Nichols,
supra; Crehore v. Ohio &c.,
131 U.
S. 240; Jackson v. Allen,
132 U. S.
27; La Confiance Compagnie Anonyme d'Assurance v.
Hall,
137 U. S. 61;
Kellam v. Keith,
144 U. S.
568; Mattingly v. N.W. Va. R. Co.,
158 U. S.
53. In none of these cases does it appear that the
defect was noticed in the circuit court, and in some not noticed by
the parties after the case had reached this Court, but action was
taken here by virtue of the duty resting on all federal courts not
to entertain jurisdiction if it does not affirmatively appear. It
is also true that, in Crehore v. Ohio &c. R. Co., supra,
this Court was asked to grant leave to the circuit court to permit
an amendment of the defective removal proceedings, and the
application was denied, but that was after the case had been
finally disposed of in the circuit court, and the insufficiency of
the removal papers had been declared by this. Here, the application
was made shortly after the filing of the removal papers, and before
any action had been taken in the circuit court. The amendment was
allowed by the circuit court, and the question now to determine is
whether that court had power to permit such amendment. It is
frequently stated that amendments are within the discretion of the
trial court, and that, unless it appears that the discretion has
been abused, no error is shown.
Page 191 U. S. 82
A petition and bond for removal are in the nature of process.
They constitute the process by which the case is transferred from
the state to the federal court. Congress has made ample provision
for the amendment of process. Section 948, Rev.Stat., reads:
"Any circuit or district court may at any time, in its
discretion, and upon such terms as it may deem just, allow an
amendment of any process returnable to or before it, where the
defect has not prejudiced, and the amendment will not injure, the
party against whom such process issues."
And by section 954, it is provided that --
"No summons, writ, declaration, return, process, judgment, or
other proceedings in civil causes, in any court of the United
States, shall be abated, arrested, quashed, or reversed for any
defect or want of form, . . . and may at any time permit either of
the parties to amend any defect in the process or pleadings, upon
such conditions as it shall, in its discretion and by its rules,
prescribe."
The question of the power of amendment has been decided by this
Court in several cases. In
Parker v.
Overman, 18 How. 137, a petition for removal was
defective in that it simply alleged residence, and not citizenship,
but was corrected, over objection, by amendment in the federal
court, and, as said by Mr. Justice Grier (p.
59 U. S.
141):
"In the petition to remove this case from the state court, there
was not a proper averment as to the citizenship of the plaintiff in
error. It alleged that Parker 'resided' in Tennessee and White in
Maryland. 'Citizenship' and 'residence' are not synonymous terms,
but, as the record was afterwards so amended as to show
conclusively the citizenship of the parties, the court below had
and this Court have undoubted jurisdiction of the case."
In
Carson v. Dunham, 121 U. S. 421, the
application for removal was based on two grounds: one, diverse
citizenship, and the other the existence of a federal question. The
allegation in respect to the federal question was general, and did
not state the facts. After the case had been entered in the federal
court, an answer was filed stating more fully the facts
Page 191 U. S. 83
upon which the existence of a federal question was based. Mr.
Chief Justice Waite, speaking for the Court, said, in reference to
this answer:
"The answer was filed, which, for the purposes of jurisdiction,
may fairly be treated as an amendment to the petition for removal,
setting forth the facts from which the conclusions there stated
were drawn. As an amendment, the answer was germane to the
petition, and did no more than set forth in proper form what had
been imperfectly state."
It is true that this Court, on examination of the record, found
that no federal question was even then disclosed, but that does not
alter the ruling that an amendment was proper showing the facts
upon which the general averment of a federal question was based.
Grace v. American Central Insurance Company, 109 U.
S. 278,
109 U. S. 285,
seems to recognize the right of amendment. The same may be said of
Thayer v. Life Association, 112 U.
S. 717,
112 U. S. 720.
Robertson v. Cease, 97 U. S. 646, was a
suit originally commenced in the United States circuit court. It
failed to allege diverse citizenship, but no objection was made in
the court below on that ground, and while this Court reversed the
judgment, it sent the case back with leave to amend the petition in
respect to the allegation of citizenship. The case relied upon in
the opinion was
Morgan v. Gay,
19 Wall. 81, in which the same ruling had been made. These cases
recognize the power of the circuit court to permit amendment of
pleadings to show diverse citizenship, and of removal proceedings
where there is a technical defect and there are averments
sufficient to show jurisdiction.
The facts here disclosed clearly show a case in which an
amendment was rightfully made. The citizenship of the defendant,
both at the time the suit was commenced and when the petition for
removal was filed, was clearly and positively stated. There was a
general averment that it was a case of diverse citizenship, and
therefore one in which, by the statute, the party was entitled to a
removal. The trust deed which was the subject matter of the
controversy showed upon its face that the plaintiffs were of Salt
Lake County, and was executed before a notary public in that
county. The continuance
Page 191 U. S. 84
of that situation is to be presumed. The first action taken by
the plaintiffs after the removal was a motion to remand based not
on account of any defect in the averments of citizenship, but
simply in respect to the amount in controversy. A month after
filing this motion, they sought to amend it by including an
objection on account of a defect in the allegations of diverse
citizenship, and immediately thereafter the defendant moved to
amend the petition for removal so as to make it sufficient in that
respect. All these things took place before any action had been had
in the federal court on the merits of the case. It may also be
noticed that the state court apparently recognized the removal
proceedings as sufficient, for it took no further steps in the
case, and hence we need not inquire what would have been the effect
of any action taken by it in disregard of the removal. Clearly the
plaintiffs were not prejudiced. The case was one which the appellee
had a right to remove, and nothing had been done to prejudice the
rights of the plaintiffs before the petition for removal was
perfected. It seems to us, therefore, that this is a case in which
the amendment was properly allowed.
The decree of the Circuit Court will be
Affirmed.
