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U.S. Supreme Court

Insurance Company v. Pechner, 95 U.S. 183 (1877)

Insurance Company v. Pechner

95 U.S. 183


1. A person not a citizen of the state, in a court whereof lie is sued, cannot, under the twelfth section of the Judiciary Act of 1789, remove the suit to the circuit court of the United States by reason of the citizenship of the

parties unless his petition for removal affirmatively shows that the plaintiff was, at the time of the commencement of the suit, a citizen of such state.

2. The right of removal is statutory, and before a party can avail himself of it to oust the jurisdiction of a state court, he must show upon the record that his case is one which comes within the provisions of the statute.

On the 1st of June, 1867, Pechner sued the Phoenix Insurance Company, a Connecticut corporation, in the Supreme Court of Chemung County in the State of New York upon a policy of insurance. On the 8th of the following month, and at the time of entering its appearance, the company presented to the court a petition, accompanied by the necessary security, for the removal of the cause to the circuit court of the United States. The petition, when taken in connection with the pleadings, set forth sufficiently the citizenship of the defendant in the State of Connecticut, but as to the citizenship of the plaintiff the statement was that "as your petitioner is informed and believes, Isidor Pechner, the plaintiff in said action, is a citizen of the State of New York." The petition bears date June 11, 1867, and was sworn to the next day. Upon its presentation the court approved the security, but denied the application for removal. chanroblesvirtualawlibrary

Page 95 U. S. 184

On the 5th of June, 1869, the plaintiff filed an amended complaint, to which the defendant answered June 21, 1869. On the 2d of February, 1872, the cause coming on for trial, the defendant again presented its original petition for removal, which remained upon the files, and requested the court to proceed no further with the trial; but this request was denied for the reason that the petition did not state facts sufficient to remove the cause. A jury was thereupon called, which returned a verdict in favor of the plaintiff, and judgment was in due form entered thereon against the defendant. The case was then taken to the Court of Appeals, where the judgment was affirmed, and the petition for removal held to be insufficient in law to effect a transfer of the cause, for the reason that it did not state affirmatively that Pechner was a citizen of the State of New York when the suit was commenced.

To reverse this judgment, the present writ of error has been brought by the company, and the only error assigned is grounded upon this decision. chanroblesvirtualawlibrary

Page 95 U. S. 185

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