Harrison v. Shorter

59 Ga. 512

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Warner, Chief Justice.

This was an application to the superior coui't of Quitman county by -the. claimants, in a claim case pending in that coui't, to transfer the same to the circuit court of the United States, under the act of congress, the claimants being citizens of the state of Alabama. The court gi’anted an order for the removal of the case, and the plaintiff in fi. fa. excepted.

1. The application to remove the case was made under the 639th section of the revised statutes of the United States, which provides for the removal of cases from the state courts to the United States circuit courts, upon the grounds therein stated, “ when the suit is between a citizen of the state in which it is brought and a citizen of another state.” There is no allegation in the petition for the removal of the case, nor in the affidavits annexed thereto, that the plaintiff in the case is a citizen of the state in which the suit was brought and is now pending. To authorize the removal ■of the suit under the act of congress, it must be a suit between a citizen of a state in which it is brought and a citizen of another state. The petitioners allege that they are citizens of another state, to-wit: of the state of Alabama, but do not allege that the plaintiff is a citizen of the state in which the suit was brought and is now pending; and, for that reason, the order for the removal of the case was error.

2. According to the ruling of the supreme court of the United States, in the case of Bank vs. Turnbull & Co., 16th Wallace’s Rep., 190, it is extremely doubtful, whether a claim case, as authorized by the laws of this state, is such a suit as was contemplated by the act of congress so as to enable the claimants therein to remove it into the circuit court of the United States.

Let the judgment of the court below be reversed.