Page:Federal Reporter, 1st Series, Volume 8.djvu/700

 686 FEDERAL REPORTBB. �Bailey V. Amebioan Cent. Ins. Co. [Uircuit Court, D. lowa. 1881.) �1. JxTRiam&rtcm' ov thei Ciecuit Cotjrt— Rbmovai. of CATr8E&— Act of 1875 �This court has jurisdiction, under the act of March 3, 1875, of a suit removed here from a state court on the petition of the defendant, where the suit was originally brought in the state court, appearance entered therein for the defendant at the flrst term, petition for removal presented, and the requisite bond tendered, without &nf other pleading being flled. �a " GoNTEovERsr "— Pbesumftions. �Where nothing appears to the contrary, it will be presumed, from the fact that a suit has been commenced, that there is a " controversy" between the parties. �TMs is an action to recover damages uppn a policy of insurance, ttud was originally instituted in the circuit court of Lee county, lowa. TMe defendant, a non-resident corporation, appeared iii the state court at the first term after the commencement of the suit, and, without filing any other pleading, presented its petition for a removal 6f the cause to this court. In the petition for removal the following Btatements appear : �"Your petitioner, the defendant, would respectfully show the court that the matter aud amouht in dispute in the above-entitled cause exceeds, exclu- sive Of costs, the eum of $500; that the controversy ini said suit is between citizens of different States ; and that the petitioner was, at ihe commencement of this suit^ and stjll is, a citizen of the state of Missouri; and that the said -Noah Bailey was thea, and still is, a citizen pf lowa." �Good and sufficient bond being tendered, th« state court sustained ibe motion |o remove the cause, and the record bas accordingly been ,filed in this court. Tbe; plaintiff moves to romand, upon the ground ,tbat, at the titae of the filing of the petition for the removal in the state court, there was no controversy between the parties. �Hagermcm, McGrary d Hagerman, for plaintifif. i Fulton e Fulton, for defendant. �McCiiABYi G. J. The act of congress of March 3, 1875, under -fvhich this «ase was remQVed, provides for the removal of causes "where the matter ip dispute exceeds, exclusive ofcosts, the sum or value of ,$5.00, * * * in whieh there sh all be a controversy be- .tween citizens of different states." It is insisted by the counsel for plaintiff that inasmuch as no answer or demurrer was filed in the state court, and no issue joined, we are bound to presume that there was no controversy in the case. That there must be a controversy in order to authorize the removal, is, of course, clear; and if it appears affirmatively from the record that there was no contiiversy, then the ��� �