Oliver v. Iowa Cent. Ry. Co.

102 F. 371, 1900 U.S. App. LEXIS 5214

Opinion

SHIR AS, District Judge.

From the record in this case it appears that the original petition was filed in the state court on the 30th of September, 1899, to which petition the Iowa Central Eailway Company was the sole defendant. On the (Sth of October following an amendment to the petition was filed, making one Richard Pender a co-defendant to the action, and on the 14th of October an answer on behalf of Pender was filed. On the 15th day of January, 1900, a petition for removal of the case to the United States circuit court was filed on behalf of the railway company on the ground of diverse citizenship. In this petition no reference is made to the defendant Pen-der, nor is it shown in any way what his residence and citizenship are, nor is it averred that there exists in the case a separable controversy between the plaintiff and the defendant railway company. Furthermore, the action was brought to the October term, 1899, of the state court, the answer from defendant being due on October 10th; whereas, the petition for removal was not filed until January loth. The state court rightly refused to grant the order of removal under these circumstances. The motion to remand to the state court is therefore granted.