Bennett v. Devine

45 F. 705, 1891 U.S. App. LEXIS 1822

• Court: U.S. Circuit Court for the Southern District of Iowa
• Decided: April 22, 1891
• Status: Published

Opinion

Sutras, J.

The plaintiff, a citizen of Iowa, brought this action in the district court of Mills county, Iowa, to recover damages In the sum of $1,950 against the defendant, a citizen of the state of Ohio. The defendant, appealing in the action, filed a counter-claim, seeking to recover damages against the plaintiff in the sum of $3,000, and then filed a petition in this court, asking a removal of the cause on the ground of local prejudice, the petition averring on its face that the amount in controversy was the sum of $4,950. The order of removal was granted, and, the transcript having been filed, the plaintiff moves for an order remanding the cause. From the transcript it now appears that the averments in the petition for removal, that the amount involved in the controversy was $4,950, can only be sustained by adding the sums claimed in the original petition and in the counter-claim. When the action was first brought it was based upon a cause of action for $1,950. This controversy has not been changed, and it still remains a controversy involving only $1,950, and no more; and hence this court cannot take jurisdiction thereof. Defendant has an independent and distinct cause of action, and the damages therein claimed cannot be added to the amount involved in the cause of action declared on by plaintiff in order to make out the jurisdictional amount. The case cannot, therefore, be properly removed by reason of the controversy presented in the action as it stood when the original petition was filed. So far as the counter-claim is concerned, the party seeking the removal is the plaintiff therein, and the right of removal does not exist in favor of a plaintiff or party who has voluntarily invoked the jurisdiction of the state court. The caso is remanded at the costs of the defendant.