Wisecarver & Reynard v. Chicago, Rock Island & Pacific Railway Co.

Supreme Court of Iowa

Wisecarver & Reynard v. Chicago, Rock Island & Pacific Railway Co.

139 Iowa 596

CourtSupreme Court of Iowa

DecidedOctober 23, 1908

StatusPublished

Cited by3 cases

This text of 139 Iowa 596 (Wisecarver & Reynard v. Chicago, Rock Island & Pacific Railway Co.) 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

Wisecarver & Reynard v. Chicago, Rock Island & Pacific Railway Co., 139 Iowa 596 (iowa 1908).

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Opinion

Sherwin, J.

The petition alleged that the plaintiff was a copartnership, and that the defendant was a corporation duly organized, owning and operating a railway in the State of Iowa. The petition further alleged that the horse was injured while being transported by the defendant from Council Bluffs, Iowa, to Forest City, Iowa, and that his value at the time of the injury was $2,500. The plaintiff asked judgment against the defendant for $3,000. Within the time required by law, the defendant filed a petition for the removal of the case to the federal court. The petition was properly entitled, and alleged that “ the matter and amount in dispute in the above-entitled action exceeds, exclusive of interest and costs, the sum or value of $2,000.” The petition further alleged that the action was between citizens of different States, and that the petitioner at the time of the commencement of the action was, and still is, a citizen and resident of the State of Illinois; that the plaintiff was then and still is a resident of the State of Iowa; and, further, that at the time of the commencement of the action the defendant was'a corporation organized and existing under, and created under the laws of the State of Illinois, and [598]*598at said time and now bas its citizenship and place of business in the city of Chicago and State of Illinois, “ and was and is a nonresident of the State of Iowa.” A good and sufficient bond was filed with the petition. The plaintiff filed a resistance to the petition, alleging, among other things, “that the subject-matter of this suit arises wholly between a natural and an artificial citizen of the State of Iowa, and this fact is controlling as against the pending-petition of removal.” In support of this resistance, the plaintiff filed a certificate made by W. B. Martin, Secretary of State of Iowa, certifying that in June, 1880, there was filed in his office articles of consolidation of the Chicago, Rock.Island & Pacific Railway Company, having its principal place of business in the city of Chicago and in the city of Davenport, Iowa. Upon the issue thus joined, the petition for removal was heard and denied. The appellant now insists that the court erred in refusing to remove the case to the United States Circuit Court, and we are of opinion that its contention must be sustained.

1. Removal of causes. The United States Supreme Court has frequently held that a State court has no jurisdiction to try an issue of fact arising upon a petition of removal to the federal court, trat, where the petition and bond are sufficient, the case must be removed; and such is also the rule of this court. Railway Co. v. Dunn, 122 U. S. 513 (1 Sup. Ct. 1262, 30 L. Ed. 1159) ; Railway Co. v. Daughtry, 138 U. S. 300 (11 Sup. Ct. 306, 34 L. Ed. 963); Van Horn v. Litchfield, 10 Iowa, 11; Chambers v. Railway Co., 104 Iowa, 238.

2. Same identification petitioner. The appellant contends, however, that the petition does not on its face show that the defendant and the petitioner are the same party. There is nothing in this contention. The Chicago, Rock Island & Pacific Railway Company was the party sued by the plaintiffs, and the action was properly entitled against said corporation. The same company or corporation that had been [599]*599brought into court filed the petition for removal, and it would be idle to say that the petition, taken in connection with the entire record in the case, did not sufficiently show the petitioner as the defendant in the plaintiffs action.

3. Same: sufficiency of petition. Appellee further says that the petition for removal should have alleged that the petitioner "was not ffiso a citizen of the State of Iowa. The petition, as is apparent from an examination thereof, alleges that it was a-citizen of the State of Illinois, and that it was a nonresident of the State of Iowa, and this is all that the law requires to be stated in such a petition. If the plaintiff desires to controvert the alleged citizenship, it should be done by a countershowing as in this case. The petitioner is not called upon to negative every defense which may be made to his petition. All that he is required to do is to allege the diverse citizenship, and, when he has done this, the petition is sufficient. See cases heretofore cited. In Bondurant v. Watson, 103 U. S. 285 (26 L. Ed. 441), it is held that, if the entire record in the case certainly discloses the citizenship of the parties, it is sufficient. Our conclusion on this branch of the case renders it unnecessary to consider other matters urged on the appeal.

For the error pointed out, the judgment is reversed and the case is remanded.

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Sherwin, J.

The petition alleged that the plaintiff was a copartnership, and that the defendant was a corporation duly organized, owning and operating a railway in the State of Iowa. The petition further alleged that the horse was injured while being transported by the defendant from Council Bluffs, Iowa, to Forest City, Iowa, and that his value at the time of the injury was $2,500. The plaintiff asked judgment against the defendant for $3,000. Within the time required by law, the defendant filed a petition for the removal of the case to the federal court. The petition was properly entitled, and alleged that “ the matter and amount in dispute in the above-entitled action exceeds, exclusive of interest and costs, the sum or value of $2,000.” The petition further alleged that the action was between citizens of different States, and that the petitioner at the time of the commencement of the action was, and still is, a citizen and resident of the State of Illinois; that the plaintiff was then and still is a resident of the State of Iowa; and, further, that at the time of the commencement of the action the defendant was'a corporation organized and existing under, and created under the laws of the State of Illinois, and [598]*598at said time and now bas its citizenship and place of business in the city of Chicago and State of Illinois, “ and was and is a nonresident of the State of Iowa.” A good and sufficient bond was filed with the petition. The plaintiff filed a resistance to the petition, alleging, among other things, “that the subject-matter of this suit arises wholly between a natural and an artificial citizen of the State of Iowa, and this fact is controlling as against the pending-petition of removal.” In support of this resistance, the plaintiff filed a certificate made by W. B. Martin, Secretary of State of Iowa, certifying that in June, 1880, there was filed in his office articles of consolidation of the Chicago, Rock.Island & Pacific Railway Company, having its principal place of business in the city of Chicago and in the city of Davenport, Iowa. Upon the issue thus joined, the petition for removal was heard and denied. The appellant now insists that the court erred in refusing to remove the case to the United States Circuit Court, and we are of opinion that its contention must be sustained.

1. Removal of causes. The United States Supreme Court has frequently held that a State court has no jurisdiction to try an issue of fact arising upon a petition of removal to the federal court, trat, where the petition and bond are sufficient, the case must be removed; and such is also the rule of this court. Railway Co. v. Dunn, 122 U. S. 513 (1 Sup. Ct. 1262, 30 L. Ed. 1159) ; Railway Co. v. Daughtry, 138 U. S. 300 (11 Sup. Ct. 306, 34 L. Ed. 963); Van Horn v. Litchfield, 10 Iowa, 11; Chambers v. Railway Co., 104 Iowa, 238.

2. Same identification petitioner. The appellant contends, however, that the petition does not on its face show that the defendant and the petitioner are the same party. There is nothing in this contention. The Chicago, Rock Island & Pacific Railway Company was the party sued by the plaintiffs, and the action was properly entitled against said corporation. The same company or corporation that had been [599]*599brought into court filed the petition for removal, and it would be idle to say that the petition, taken in connection with the entire record in the case, did not sufficiently show the petitioner as the defendant in the plaintiffs action.

3. Same: sufficiency of petition. Appellee further says that the petition for removal should have alleged that the petitioner "was not ffiso a citizen of the State of Iowa. The petition, as is apparent from an examination thereof, alleges that it was a-citizen of the State of Illinois, and that it was a nonresident of the State of Iowa, and this is all that the law requires to be stated in such a petition. If the plaintiff desires to controvert the alleged citizenship, it should be done by a countershowing as in this case. The petitioner is not called upon to negative every defense which may be made to his petition. All that he is required to do is to allege the diverse citizenship, and, when he has done this, the petition is sufficient. See cases heretofore cited. In Bondurant v. Watson, 103 U. S. 285 (26 L. Ed. 441), it is held that, if the entire record in the case certainly discloses the citizenship of the parties, it is sufficient. Our conclusion on this branch of the case renders it unnecessary to consider other matters urged on the appeal.

For the error pointed out, the judgment is reversed and the case is remanded.

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139 Iowa 596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisecarver-reynard-v-chicago-rock-island-pacific-railway-co-iowa-1908.

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