“ANTOINETTE B. KINNEY and Clesson S.

Kinney, Appts., v.

COLUMBIA SAVINGS & LOAN ASSOCIA¬ TION.

(See S. C. Reporter’s ed. 78-84.)

Removal of causes — diverse citizenship — amendment of petition.

Leave to amend a petition for removal to a Federal court for diverse citizenship so as to show the citizenship of the plaintiffs may, in the exercise of the general power of Fed¬ eral courts, under U. S. Rev. Stat. §§ 048,

954 (U. S. Comp. Stat. 1001, pp. 695, 090), to allow amendments of process, he granted after the filing of the removal papers, but before any action taken in the Federal court on the merits, where there was a general averment of diverse citizenship, and the citizenship of defendant had been clearly stated, and it appeared from the face of the trust deed, which was the subject-matter In controversy, that the plaintiffs were, at the time of its execution, residents of another state.

[No. 102.]

Submitted October 13, 1903. Decided 'No¬ vember 9, 1903.

APPEAL from the Circuit Court of the United States for the District of Utah to review a decree for defendant in a suit which had been removed to that court from the District Court of Salt Lake County. Affirmed, .

See same case below, 113 Fed. 359.

Statement by Mr. Justice Brewers On August 25, 1899, appellants com¬ menced this suit in the district court of Salt Lake county, Utah. By it plaintiffs sought an accounting and the cancelation of a deed of trust executed by them to a trustee for the benefit of the defendant. The complaint

Noth. — On removul of cause generally — see

notes to Whelan v. New York, L. E. & W. R. Co.

1 L. R. A. 65 ; Butler v. National Home for Disabled Volunteer Soldiers, 36 L. ed. U. S. 346 ; and Torrence v. Shedd, 36 L. ed. U. S. 528.

On removal of causes for diverse citizenship — see notes to Seddon v. Virginia, T. & C. Steel & I. Co. 1 L. R. A. 108 ; and Meyer v. Delaware R. Constr. Co. 25 L. ed. U. S. 593.

As to amendments to supply jurisdictional de¬ fects — see note to Carnegie v. Hulbert, 16 C. C.

A. 508.

103

78-80

Supreme Court of the United States.

Out. Term,

alleged that “the defendant was and now is a corporation organized and existing under the laws of the state of Colorado.” The deed of trust (copied in the complaint) was executed November 22, 1890, and purports to be “between Antoinette B. Kinney and Clesson S. Kinney, her husband, of the county of Salt Lake and territory of Utah, parties of the first part; and Clyde J. East¬ man” named as trustee. It was executed be¬ fore a notary public in Salt Lake county.

On September 2, 1899, the defendant filed a petition and bond for removal to the cir¬ cuit court of the United States for the dis¬ trict of Utah. That petition alleged:

“Your petitioner, The Columbia Savings & Loan Association, respectfully shows to this honorable court that the matter and amount in dispute in the above-entitled suit exceeds, exclusive of interest and costs, tire sum or value of $2000.

[T9] *“That the controversy in said suit is be¬ tween citizens of different states, and that your petitioner, the defendant in the above- entitled suit, was, at the time of the com¬ mencement of the suit, and still is, a resi¬ dent and a citizen of the city of Denver and state of Colorado.”

On November 28, 1899, the plaintiffs filed a motion to remand the cause to the state court on the ground, that “the amount or matter in dispute therein does not, and at the time said cause was removed from the state court, did not, exceed the sum or value of $2,000, exclusive of interest and cost.” On the same day the defendant filed in the circuit court an answer and cross com¬ plaint, by the latter seeking a foreclosure of the trust deed. In the cross complaint it al¬ leged “that it is a corporation, organized and existing under the laws of the state of Colorado, and is a citizen of said state, and that complainants herein are citizens and residents of Salt Lake City, state of Utah.”

On December 30, 1899, the plaintiffs gave notice of a motion to amend their motion to remand, by adding as a further ground “that the diverse citizenship of the parties at the time of the commencement of the suit, and at the time of the removal of said cause from the state court, does not appear upon the record.”

On January 2, 1900, the defendant gave notice of a motion to amend the paragraph heretofore quoted from its cross complaint to read as follows:

“First. That your orator, at the time of the commencement of this suit, was and ever since then, and now is, a corporation organ¬ ized and existing under and by' virtue of the laws of the state of Colorado, and a citizen and resident of the city of Denver and state of Colorado, and that the said plaintiffs, Antoinette B. Kinney and Clesson S. Kin- 104

ney, at the time of the commencement of this suit, were, and ever since have been, and still are, citizens of the state of Utah, and residents thereof, residing at the city of Salt Lake in the said state of Utah.”

*And also notice of a motion to amend

the petition for removal by adding this al¬ legation :

“That the plaintiffs, Antoinette B. Kinney and Clesson S. Kinney, and each of them, were at the time of the commencement of this suit, and still are, citizens and residents of the city of Salt Lake and state of Utah.”

On January 0, 1900, the motion to re¬ mand was denied, and leave given to amend the petition for removal and the cross com¬ plaint. Subsequently the case went to trial in the circuit court, and a decree was ren¬ dered in favor of the defendant for the re¬ covery of $4,003.45, and the foreclosure of the trust deed. From such decree an appeal was allowed to this court upon the single question of jurisdiction.

Messrs. Charles S. Varian and Frank¬ lin S. Richards submitted the cause for appellants :

Amendments may be allowed by the cir¬ cuit court when, and when only, the peti¬ tion for removal, as presented to the state court, upon its face, in connection with the remainder of the record made at that time, shows sufficient ground for removal.

Gr chore v. Ohio d M. II. Co. 131 U. S.

240, 33 L. cd. 144, 9 Sup. Ct. Rep. C92;

Jackson v. Allen, 132 U. S. 27, 33 L. cd.

249, 10 Sup. Ct. Rep. 9; Martin v. Balti¬ more d O. R. Co. 151 U. S. G91, 38 L. ed.

318, 14 Sup. Ct. Rep. 533; Powers v. Chesa¬ peake d O. R. Co. 109 U. S. 101, 42 L. ed.

G70, IS Sup. Ct. Rep. 2G4.

Mr. J. Norman submitted the cause for appellee:

The petition having been founded upon the diversity of the citizenship of plaintiffs and defendant, and that fact being stated, sufficient was averred to give the Federal court jurisdiction, and to authorize an amendment to supply the formal and partic¬ ular averments as to the citizenship of the plaintiffs.

Studlemann v. White Line Towing Co. 92 Fed. 209; Johnson v. F. C. Austin Mfg. Co.

7G Fed. GIG.

If, upon the face of the petition and the whole record of the state court, sufficient grounds for removal are shown, the petition may be amended in the circuit court of the United States by leave of that court by stat¬ ing more fully and distinctly the' facts which support those grounds.

Carson v. Dunham , 121 U. S. 421, 30 L. ed. 992, 7 Sup. Ct. Rep. 1030; Martin v. Bal¬ timore d O. R. Co. 151 U. S. G73, 38 L. ed.

191 U. S.

Kinney v. Columbia Savings & Loan Asso.

80-82

311, 14 Sup. Ct. Rep. 533; Powers v. Ches¬ apeake A O. R. Go. 109 U. S. 92, 42 L. eel. 073, 18 Sup. Ct. Rep. 204.

And where the removal is upon a single ground, a. g., diverse citizenship, the right of amendment goes for nothing, unless a nec¬ essary and material fact not appearing in the record may be supplied.

Mr, Justice Brewer delivered the opinion of the court:

Had the Federal court the power to per¬ mit the amendment of the petition for re¬ moval? The suit was removable. Diverse citizenship in fact existed and the amount in controversy was over $2,000. The right to remove existed, but the petition for re¬ moval was defective. If it had been suffi¬ cient there would have been no need of amendment. The question is whether it was so defective as to be incurable. In other words, was the case one in which the court had power to permit the facts to be stated in order to secure to the defendant the removal to which it had a right? By § 1 of chap. 800 (25 Stat. at L. 434, U. S. Comp. Stat. 1901, pp. 508, 582), jurisdiction is given to the circuit courts of all suits of a civil na¬ ture “where the matter in dispute exceeds, exclusive, of interest and costs, the sum or value of $2,000,” and “in which there shall be a controversy between citizens of differ¬ ent states.” By § 2 of the same act any such suit pending in a state court may be removed into the circuit court of the United

States by the defendant or defendants '"'if nonresidents. The petition for removal, which was duly verified, alleged the exist¬ ence of just such a suit. True, this court, construing the statute, has held that the difference of citizenship must exist both at the commencement of the suit and at the filing of the petition for removal. Gibson v. Bruce, 108 U. S. 561, 27 L. ed. 825, 2 Sup. Ct. Rep. 873; Akers v. Akers, 117 U. S. 197, 29 L. ed. 888, 6 Sup. Ct. Rep. 009; Stevens v. Nichols, 130 U. S. 230, 32 L. ed. 914, 9 Sup. Ct. Rep. 518. But this does not change the fact that the language of the petition follows that of the statute in stating the ex¬ istence of that which the statute makes the basis of a right of removal.

It is also true that when a record pre¬ sented to this court fails to show a diver¬ sity of citizenship, both when the suit was commenced and when the petition for re¬ moval was filed, a reversal has been ordered and the case sent back to the circuit court, with directions to remand to the state court. Stevens v. Nichols, 130 U. S. 230, 32 L. ed. 914, 9 Sup. Ct. Rep. 518: Grehore v. Ohio A M. R. Co. 131 U. S. 240, 33 L. ed. 144, 9 Sup. Ct. Rep. 092; Jackson v. Allen, 132 U. ,S. 27, 33 L. ed. 249, 10 Sup. Ct. Rep. 9; ha 191 U. S.

Confiance Compagnie d’ Assurance Gontre I’Incendie v. Hall, 137 U. S. 61, 34 L. ed.

573, 11 Sup. Ct. Rep. 5; Kellam v. Keith,

144 U. S. 508, 30 L. ed. 544, 12 Sup. Ct. Rep.

922; Mattingly v. N art hives tern Virginia R.

Go. 158 U. S. 53, 39 L. ed. 894, 15 Sup. Ct.

Rep. 725. In none of these cases does it ap¬ pear that the defect was noticed in the cir¬ cuit court, and in some not noticed by the parties after the case had reached this court, but action was taken here by virtue of the duty resting on all Federal courts not to entertain jurisdiction if it does not affirma¬ tively appear. It is also true that in Gre¬ hore v. Ohio A M. R. Co. 33 L. ed. 144, 9 Sup. Ct. Rep. 692, this court was asked to grant leave to the circuit court to permit an amendment of the defective removal pro¬ ceedings, and the application was denied, but that was after the case had been finally disposed of in the circuit court, and the in¬ sufficiency of (he removal papers had been declared by this. Here the application was made shortly after the filing of the removal papers, and before any action had been taken in the circuit court. The amendment was allowed by the circuit court, and the question now to determine is whether that court had power to permit such amendment.

It is frequently stated that amendments are within the discretion of the trial court, and that, unless it appears that the discretion lias been abused, no error is shown.

*A petition and bond for removal are in

the nature of process. They constitute the process by which the case is' transferred from the state to the Federal court. Con¬ gress has made ample provision for the amendment of process. Section 948 (U. S. Comp. Stat. 1901, p. 095), reads:

“Any circuit or district court may at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of any process returnable to or before it, where" the defect has not prejudiced, and the amendment will not injure, the party against whom such process issues.”

And by § 954 (U. S. Comp. Stat. 1901, p. 093), it is provided that —

“No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes, in any court of the United States, shall be abated, arrested, quashed, or reversed for any defect or want of form, and may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe.”

The question of the power of amendment has been decided by this court in several cases. In Parker v. Overman, 18 How. 137,

15 L. ed. 318, a petition for removal was de-

105

82-84

Supreme Court of the United States.

Oct. TeRM,

fective in that it simply alleged residence, and not citizenship, but was corrected, over objection, by amendment in the Federal court, and, as said by Mr. Justice Grier, (p. 141, L. ed. p. 319) :

“In the petition to remove this case from the state court there was not a proper aver¬ ment as to the citizenship of the plaintiff in error. It alleged that Parker ‘resided’ in Tennessee and White in Maryland. ‘Citizen¬ ship’ and ‘residence’ are not synonymous terms; but as the record was afterwards so amended as to show conclusively the citi¬ zenship of tile parties, the court below had, and this court have, undoubted jurisdiction of the case.”

In Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992, 7 Sup. Ct. Rep. 1030, the applica¬ tion for removal was based on two grounds: One, diverse citizenship, and the other, the existence of a Federal question. The alle¬ gation in respect to the Federal question was general, and did not state the facts. After the case had been entered in the Fed¬ eral court, an answer was filed, stating more

fully the facts ‘upon which the existence of a Federal question was based. Mr. Chief Justice Waite, speaking for the court, said, in reference to this answer:

“The answer was filed, which, for the pur¬ poses of jurisdiction, may fairly be treated as an amendment to the petition for removal, setting forth the facts from which the con¬ clusions there stated were drawn. As an amendment, the answer was germane to the petition, and did no more than set forth in proper form what had been imperfectly stated.”

It is true that this court, on examination of the record, found that no Federal ques¬ tion was even then disclosed, but that does not alter the ruling that an amendment was proper showing the facts upon which the general averment of a Federal question was based. Grace v. American Cent. Ins. Co. 109 U. S. 278, 285, 27 L. ed. 932, 935, 3 Sup. Ct. Rep. 207, seems to recognize the right of amendment. The same may be said of Thayer v. Life Asso. of America, 112 U. S. 717, 720, 28 L. ed. 864, 866, 5 Sup. Ct. Rep.

L. ed. 1057, was a suit originally commenced in the United States circuit court. It failed to allege diverse citizenship, but no objec¬ tion was made in the court below on that ground, and while this court reversed the judgment, it sent the case back with leave to amend the petition in respect to the alle¬ gation of citizenship. The ca3e relied upon in the opinion was Morgan v. Gay, 19 Wall. 81, 22 L. ed. 100, in which the same ruling had been made. These cases recognize the power of the circuit court to permit amend¬ ment of pleadings to show diverse citizen- 106

ship, and of removal proceedings where there is a technical defect and there are averments sufficient to show jurisdiction.

The facts here disclosed clearly show a case in which an amendment was rightfully made. The citizenship , of the defendant, both at the time the suit was commenced and when the petition for removal was filed, was clearly and positively stated. There was a general averment that it was a case of diverse citizenship, and, therefore, one in which, by the statute, the party was entitled to a removal. The trust deed, which was the subject-matter of the controversy, showed upon its face that the plaintiffs were of Salt Lake county, and was executed before a notary public in that county. The contin¬ uance *of that situation is to be presumed. [84 The first action taken by the plaintiffs after the removal was a motion to remand, based not on account of any defect in the aver¬ ments of citizenship, but simply in respect to the amount in controversy. A month after filing this motion they sought to amend it by including an objection on account of a defect in the allegations of diverse citizen¬ ship, and immediately thereafter the de¬ fendant moved to amend the petition for re¬ moval so as to make it sufficient in that re¬ spect. All these things took place before any action had been had in the Federal court on the merits of the case. It may also be noticed that the state court apparently recognized the removal proceedings as suffi¬ cient, for it took no further steps in the case, and hence we need not inquire what would have been the effect of any action taken by it in disregard of the removal. Clearly, the plaintiffs were not prejudiced.

The case was one which the appellee had a right to remove, and nothing had been done to prejudice the rights of the plaintiffs be¬ fore the petition for removal was perfected.

It seems to us, therefore, that this is a case in which the amendment was properly al¬ lowed.

The decree of the Circuit Court will be affirmed.