Hall v. Tevis

S.D. New York

Hall v. Tevis

177 F. 600, 1910 U.S. App. LEXIS 5332

DecidedMarch 29, 1910

StatusPublished

This text of 177 F. 600 (Hall v. Tevis) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hall v. Tevis, 177 F. 600, 1910 U.S. App. LEXIS 5332 (S.D.N.Y. 1910).

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Opinion

On Motion to Remand.

NOYES, Circuit Judge.

In this action the plaintiff sues as transferee of a promissory note payable to the order .of Melville D. Chapman. The petition for removal contains no allegations with respect •to the citizenship or residence of said Chapman. Consequently it does not appear that Chapman and the defendant are citizens of different states, and that the Circuit Court of the United States has jurisdiction [601]*601o£ the controversy. Indeed, it does not appear — even if we go outside the petition for removal — that the action could have been brought originally in the Circuit Court for this district, and was properly removable to this court. The plaintiff could not waive the want of jurisdiction shown by the failure to allege diverse citizenship between the plaintiff’s assignor and the defendant, and the proof is insufficient to establish a waiver of the jurisdiction of this particular Circuit Court.

The motion to remand is granted.

On Application for Order to Show Cause for Reargument.

Assuming that the court may go outside the petition for removal and into the removal record, nothing is to be found showing the citizenship of the plaintiff’s assignor, Chapman. The only statement regarding his residence is in his affidavit, and this does not state his residence at the commencement of the action. Obviously the statements in the affidavit filed by the defendant in this court after the removal of the cause cannot be considered.

The application for an order to show cause is denied.

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On Motion to Remand.

NOYES, Circuit Judge.

In this action the plaintiff sues as transferee of a promissory note payable to the order .of Melville D. Chapman. The petition for removal contains no allegations with respect •to the citizenship or residence of said Chapman. Consequently it does not appear that Chapman and the defendant are citizens of different states, and that the Circuit Court of the United States has jurisdiction [601]*601o£ the controversy. Indeed, it does not appear — even if we go outside the petition for removal — that the action could have been brought originally in the Circuit Court for this district, and was properly removable to this court. The plaintiff could not waive the want of jurisdiction shown by the failure to allege diverse citizenship between the plaintiff’s assignor and the defendant, and the proof is insufficient to establish a waiver of the jurisdiction of this particular Circuit Court.

The motion to remand is granted.

On Application for Order to Show Cause for Reargument.

Assuming that the court may go outside the petition for removal and into the removal record, nothing is to be found showing the citizenship of the plaintiff’s assignor, Chapman. The only statement regarding his residence is in his affidavit, and this does not state his residence at the commencement of the action. Obviously the statements in the affidavit filed by the defendant in this court after the removal of the cause cannot be considered.

The application for an order to show cause is denied.

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Bluebook (online)

177 F. 600, 1910 U.S. App. LEXIS 5332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-tevis-nysd-1910.