Johnson v. Accident Ins. Co. of North America

35 F. 374, 1888 U.S. App. LEXIS 2473

• Court: U.S. Circuit Court for the District of Western Michigan
• Decided: June 19, 1888
• Status: Published

Opinion

Sevehens, J.,

(orally.) This cause was instituted in a state court, and was thence removed upon the petition of the defendant, setting forth, among other things, that, at the time of the commencement of this suit, the plaintiff was a citizen of the state of Michigan, and the defendant a corporation organized and existing under the laws of the dominion of Canada, having its principal office in said dominion, and being, within the meaning of the acts of congress, a citizen of the said dominion of Canada. In due season the transcript ivas filed in this court, and within a short time thereafter the plaintiff applied to the court, by motion, (based upon affidavits designed to establish the fact that she had never been a citizen of the state of Michigan, but, on the contrary, liad always been an alien, and a subject of the czar of .Russia,) for an order remanding the cause to the state court. Upon the hearing of that application, I ruled that the disputed question of citizenship, disclosed by the petition for removal and the affidavits just referred to, could not properly bo determined upon motion, nor be tried upon affidavits: and I then indicaied to counsel some of the various methods of procedure in such cases which had been approved by the federal courts, including that .of filing a plea in the nature of a plea in abatement to the petition for removal. Leave was then given the plaintiff to present the question thereafter in any appropriate way. Subsequently, the plaintiff, acting pursuant to such leave of court., filed in this cause her plea in the nature of a plea in abatement to said, petition for removal, setting forth therein substantially the same allegations concerning her citizenship as those contained in the affidavits filed in support of her motion to remand. The defendant has demurred to that plea; the plaintiff has filed in the cause a joinder in demurrer; and the legal questions as to the sufficiency of the pleadings involved have been submitted to me by counsel for the respective parties upon briefs. In behalf of the defendant it is urged that the plea is not sufficient in matters of form when tested by the strict technical rules which at common law regulated pleas in abatement. I do not deem it necessary to determine whether or not this contention is well founded, for I am satisfied that this plea should not be tested by such rules. It is not such a pleading as should be looked upon with disfavor by the court, but is one which simply tenders an issue upon a material question of fact; and it fairly and with sufficient certainty sets forth allegations as to matters of fact which, if proven, would clearly negative the jurisdiction of this court. The function which such a plea performs is a substantive one, designed only for bringing forward an issue of fact in which the other party may join,, and so a trial be had. An order overruling the demurrer must therefore be entered. An opportunity, however, should be given the defendant to accept the issue tendered. Ten days will be allowed in which the allegations of the plea as to the citizenship of the plaintiff may be traversed. In default thereof an order will be entered remanding the cause.