Middleton v. Middleton

Supreme Court of Iowa

Middleton v. Middleton

54 N.W. 143, 87 Iowa 292

DecidedJanuary 25, 1893

StatusPublished

This text of 54 N.W. 143 (Middleton v. Middleton) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Middleton v. Middleton, 54 N.W. 143, 87 Iowa 292 (iowa 1893).

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Opinion

Granger, J.

But a single question is argued, and it is conceded to be the only one for consideration in this court, and that is, did the district court err in [294]*294refusing to transfer the cause to the federal court? A point made by the appellee is that the petition does not show upon its face that the amount in controversy is sufficient to justify a removal. The plaintiffs claim the removal under the provisions of the act of congress of March 2, 1867, known as the “Prejudice or Local Influence Act; ” and it is said that by the filing of a petition “in due form,” with a bond, etc., the district court loses its jurisdiction. It is true, in this case, that a petition was filed, and a bond approved by the clerk of the court. The petition, to be in due form for the purpose of a renewal, must contain averments, where the petitioner is the plaintiff, in harmony with the original petition, that bring the case within the provisions of the law for removals. The law under which the removal is sought permits removals where the amount in controversy exceeds five hundred dollars. The jurisdictional limit is increased to two thousand dollars by the act of March 3, 1887. See In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141. The petition for removal contains an averment “that the controversy as to the validity of said alleged will exceeds the sum of ($3,000) three, thousand dollars, being real and personal property, exclusive of costs.” The petition filed by the plaintiffs, setting forth their cause of action, shows affirmatively that the statement in the petition for removal is not true. The will is in existence only as disposing of property of the value of three hundred dollars. Under the statute, only that amount can be bequeathed by a verbal will, and then only as personal property. Code, section 2324. The order for probate specifies that the will is only valid for that amount. The original petition assails that will, and that only. There is no other will to assail, nor does the judgment or order appealed from affect property or rights of a greater value.

It becomes a question, then, if, upon such a peti[295]*295tion for removal, the district court must shut its eyes to the conclusive showing, from the petitioner’s own statements of record in the case, and grant the petition. It is not a case of. doubt or question as to amount. The petitioner’s own statements in the records are such as to exclude doubt or question. In Dillon on Removal of Causes, page 63, it is said: “The value of the matter in dispute, for the purposes of removal, is to be determined by reference to the amount claimed in the declaration, petition, or bill of complaint,” — and many cases are cited to support the rule. It seems to be the appellant’s theory that the averments in the petition for removal are alone to be considered as showing the amount in controversy.

We think the order of the district court in refusing the petition for removal was right, and its judgment ÍS AFFIRMED.

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Granger, J.

But a single question is argued, and it is conceded to be the only one for consideration in this court, and that is, did the district court err in [294]*294refusing to transfer the cause to the federal court? A point made by the appellee is that the petition does not show upon its face that the amount in controversy is sufficient to justify a removal. The plaintiffs claim the removal under the provisions of the act of congress of March 2, 1867, known as the “Prejudice or Local Influence Act; ” and it is said that by the filing of a petition “in due form,” with a bond, etc., the district court loses its jurisdiction. It is true, in this case, that a petition was filed, and a bond approved by the clerk of the court. The petition, to be in due form for the purpose of a renewal, must contain averments, where the petitioner is the plaintiff, in harmony with the original petition, that bring the case within the provisions of the law for removals. The law under which the removal is sought permits removals where the amount in controversy exceeds five hundred dollars. The jurisdictional limit is increased to two thousand dollars by the act of March 3, 1887. See In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. Rep. 141. The petition for removal contains an averment “that the controversy as to the validity of said alleged will exceeds the sum of ($3,000) three, thousand dollars, being real and personal property, exclusive of costs.” The petition filed by the plaintiffs, setting forth their cause of action, shows affirmatively that the statement in the petition for removal is not true. The will is in existence only as disposing of property of the value of three hundred dollars. Under the statute, only that amount can be bequeathed by a verbal will, and then only as personal property. Code, section 2324. The order for probate specifies that the will is only valid for that amount. The original petition assails that will, and that only. There is no other will to assail, nor does the judgment or order appealed from affect property or rights of a greater value.

It becomes a question, then, if, upon such a peti[295]*295tion for removal, the district court must shut its eyes to the conclusive showing, from the petitioner’s own statements of record in the case, and grant the petition. It is not a case of. doubt or question as to amount. The petitioner’s own statements in the records are such as to exclude doubt or question. In Dillon on Removal of Causes, page 63, it is said: “The value of the matter in dispute, for the purposes of removal, is to be determined by reference to the amount claimed in the declaration, petition, or bill of complaint,” — and many cases are cited to support the rule. It seems to be the appellant’s theory that the averments in the petition for removal are alone to be considered as showing the amount in controversy.

We think the order of the district court in refusing the petition for removal was right, and its judgment ÍS AFFIRMED.

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54 N.W. 143, 87 Iowa 292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/middleton-v-middleton-iowa-1893.

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