England v. Gebhardt

A. Q. Keasbey, for plaintiff in error.

John R. Emery, for defendant in error.

This is a writ of error brought under the act of March 3, 1875, c. 137, § 5, (18 St. 472,) to reverse an order of the circuit court remanding a suit at law to the state court from which it had been removed. The suit was begun by Jacob W. Gebhardt, the defendant in error, against Isaac W. England, the plaintiff in error, in the supreme court of New Jersey, and a summons was duly served on England. The pleadings were made up and issue joined in the state court. When that was done there was nothing in the record to show the citizenship of the parties, but on the sixth of September, 1883, which was in time, England filed a petition, accompanied by the necessary bond, for the removal of the suit to the circuit court of the United States for the district of New Jersey. The petition set forth that England was a citizen of New Jersey and Gebhardt a citizen of New York, both at the time of the commencement of the suit and at the time of the presentation of the petition. The removal was asked for solely on the ground of the citizenship of the parties. Upon the presentation of the petition the state court entered an order to the effect that it would proceed no further, and a copy of the record was filed in the circuit court on the twenty-fifth of September.

On the fourteenth of March, 1884, the following order was made in the cause: 'This cause, coming on to be heard on a motion to remand this cause to the New Jersey supreme court, in the presence of Joseph A. Beecher, attorney for the plaintiff, and of A. Q. Keasbey, attorney for the defendant, and the matter having been argued by the respective attorneys, and the court having taken time to consider the same, and the court being of opinion that there is not in said cause so attempted to be removed to this court a controversy between citizens of different states, according to the true intent and meaning of the act of congress in this behalf, it is now, * * * on motion of Joseph A. Beecher, ordered that the said motion be, and the same is hereby, granted, and this cause is remanded to the New Jersey supreme court to proceed therewith according to law; and it is further ordered that the said plaintiff do recover of the said defendant, Isaac W England, the costs of this motion, to be taxed.' The motion on which this order was made is not set out in the record There are, however, in the transcript what purport to be certain affidavits, sworn to in the months of November and December, 1883, and filed February 25, 1884, which have indorsed thereon, 'Affidavits, on motion to remand,' and there is also what purports to be the opinion of the judge denying the motion, from which it appears that 'the motion to remand this cause is founded upon the allegation that both the plaintiff and defendant were citizens of the state of New Jersey when the summons was issued and served, and the petition for removal was filed. It is resisted by the defendant upon the ground that at both of these periods of time the plaintiff was residing in, and was a citizen of, New York.' There is no bill of exceptions in the record, and no authentic finding or statement of the facts on which the order to remand was made, or of the evidence submitted by the parties. Neither does the order to remand itself refer in any manner to the affidavits as the foundation of the action which was taken.

[Argument of Counsel from 504 intentionally omitted]

WAITE, C. J.