Page:Federal Reporter, 1st Series, Volume 6.djvu/15

 EAEISEB V. ILIilKOIS CilNT. B. 00. t �{he question of the suffieiency of the petition for removal, auu requested their views in writing thereon. �These having been furnished, the question bas been fuUy considered by the full bench, with the resuit stated in the following opinion. �A. B. e J. C. Cummins and Berryhill e Henry, for plain- tiff. �John F. Duncomhe, for defendant. �McCraky, C. J. It -was settled by the case of Ins. Co. v. Pechner, 95 U. S. 183, that under the tweifth section of the judiciary act of 1789, embodied in section 639 of the Eevised Statutes, a cause cannot be removed from a state to a federal court unless the petition for removal or the record of the cause affirmatively shows that at the time of the commence- ment of the suit the parties were citizens of different sfcates. The right of removal was held to be statutory, and it was decided that betore a party can avail himself of it, to ousi the jurisdiction of a state court, he must show, upon the rec- ord, that his case is one which cornes within the provisions of the statute. It is also clear, upon the authority of the case just cited, as well as upon well-settled prinoiples, that the removal of the record of a cause from a state court into this court, where neither the petition for removal nor the rec- ord shows that the case is removable, is an utterly void proceeding, which neither confers jurisdiction upon this court nor takes it from the state court. �Under the act above cited the fact of the citizenship of the parties at the time of the commencement of the suit is jurisdictional, and must in every case appear in the record. The fact that it may exist in pais is of no importance, since the court cannot look beyond the record to ascertain it, and, if it did, could not in that way acquire jurisdiction. �That the parties might have made a showing upon which the case could have been removed cannot avail them if they have not in fact done so. �The rule which requires that in the federal courts ail juris- dictional faots shall appear in the record, applies with even greater force to causes removed from. the state courts than to ��� �