Kinney v. Columbia Savings & Loan Association

On August 25, 1899, appellants commenced this suit in the district 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 $2000.

'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.' 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.

Messrs. Charles S. Varian and Franklin S. Richards for appellants.

Mr. J. Norman for appellee.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court: