Healy v. McCormick

157 F. 318, 1907 U.S. App. LEXIS 5409

Opinion

WARD, Gircuit; Judge.

This is a- motion to remand a case removed from the Supreme Court of the state of New York into this court. _

The petition addressed to the state court avers:.

“That at the time of the commencement of this action by the service of the summons and complaint herein which was on July 18, 1907, the defendants William McCormick and Henry McCormick were citizens' of the -island of Porto Rico residing at Arroyo, Porto Rico, and that they still are citizens and residents of the island of Porto Rico. At the time of the commencement of this action by the service of the summons and complaint herein,- which was on July 18, 1907, the defendant and petitioner, John Charles. McCormick, was a citizen of the British Empire and a subject of His Majesty, King Edward, and a resident of the island of Porto Rico, and still is. a foreign citizen, to wit, a citizen of the British Empire and a subject óf His Majesty, King Ed■ward,. and a resident of . Arroyo in the island of -Porto Rico.”

• This court would not have original jurisdiction of the action on the ground of citizenship, because-two of the parties-are not citizens of any state. The petitioner asks leave to amend his petition by stating that his codefendants are not citizens and residents of Porto Rico but are British citizens. This cannot be done. Whether the cause was removable depends solely upon the papers filed in the state court (Crehore v. Ohio & Mississippi Ry. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144), and as they show that the cause was improperly removed, the motion to remand is granted.