Bradley v. Ohio River & Charleston Railroad

26 S.E. 169, 119 N.C. 744

• Court: Supreme Court of North Carolina
• Decided: September 5, 1896
• Status: Published

Opinion

MoNtgomeey, J.;

There were many questions raised in the record, all of which were discussed at length in the argument here. It is unnecessary, however, for us to consider but a single one of them. Both the affidavit for the removal of the cause from the State court to the United States Circuit Court and the order of his Honor Judge DiCic of the latter court, directing its removal, are fatally defective in their most material and necessary features. The affidavit shows that the petitioner (the defendant in the action) was, at the time the affidavit was made, a resident and citizen of the State of South Carolina, and that the plaintiff was at that time a resident and citizen of the State of North Carolina, and the order of removal only recites the citizenship of the parties as it was set out in the petition. It does not appear affirmatively, either in the petition or in the order of removal or anywhere else in the record, that the diverse citizenship of the parties existed also at the time of the commencement of the action. And for that reason the order is a nullity, the Circuit Court not having jurisdiction to make the order on the affidavit. The case of Stevens v. Nichols, 130 U. S., 232, is exactly in point and decisive of this matter. The- Supreme Court said in that case : “ The petition for removal does not allege the citizenship of the parties except at the date when it was filed, and it is not shown elsewhere in the record that Stevens & Myrick were at the commencement of the action citizens of a State other than the one of which the plaintiff was at that time a citizen. The Court therefore cannot consider the merits of the case.’ The judgment is reversed upon the ground that it does not appear that the Circuit Court had jurisdiction, and the case is remanded to that Court with directions to send it back to the State court.”

No Error.