ENDY V. COMMERCIAL ErnE INS. CO.
ENDY V. COMMERCIAL FIRE INS. Co. OF NEW YORK.
(Cz'rcuit Oourt, D. Oalifornia.
August 17, 1885.)
REMOVAL OF CAUSE-DIVERSITY OF CITIZENSHIP MUST EXIST WHEN.
A sllit cannot be removed from a state court to anal ional court on the ground of citizensllip, nnrler the act of 1875, unless the reqnisite citizenship of the parties existed both when the suit was commenced and at the lime of filing the petition for removal. Gibson v. Bruce, 108 U. 8. 562, S. C. 2 Sup. Ct. Hep. 873, and Houston rf: l' C. Ry. Co. v. 8hij'ley, III U. S. 360, S. C. 4 Sup. Ct. Rep. 472, :vllowed.
SAME-AMENDMENT OF PETITION.
JicN,!ughton v. South Pac. U. R. 00.19 FED. REP. 883, followed as to right to amend petition in circuit COllrt to show diversity of citizenship, and held, that whl,re the state court has refused to order the removal of a cause on de1ective petition, an amendment is not a matter of right, and will not be permitted.
On Motion to Amend Petition. Crittenden Thornton, for the motion. Eagon If Armstrong, contra. SAWYER, J". A suit cannot be removed from a state court toa national court on the ground of citizenship, under the act of 1875, unless the requisite citizenship of the parties existed both when the suit was commenced and at the time of filing the petition for removal. Gibson v. Bruce, 108 U. S. 562; S. C. 2 Sup. Ct. Rep. 873; Houston d: T. C. fly. Co. v. Shirley, III U. S. 360; S. C. 4: Sup. Ct. Rep. 472. The record in this case does not show the proper citizenship of plaintiff at the time of the commencement of the suit, and the state court therefore properly refused to make an order removing the cause. Plaintiff asks leave to amend his petition in this court in such manner as to show the proper citizenship of the parties to gi ve jurisdiction. In McNaughton v. South Pac. C. R. Co. 19 FED. REP. 883, doubt was expressed as to the authority of the court to allow such an amendment, notwithstanding the ruling to the contrary in some circuits, and the incon venience of the practice pointed out. But, conceding the authority, it was held that such an amendment is not a matter of right, but a matter resting in the sound discretion of the court, and ought not to be permitted. This court is still satisfied with that ruling, and will adhere to it until overruled by higher authority. As shown in the case cited, great embarrassments might result from such an amendment, as, after an amendment in the United States circuit court, the records of both courts would show jurisdiction. The supreme court has settled the point that the state court is not required to let go its hold upon a case till a proper cause for removal is shown by its record. This being so, upon an amendment in the circuit court both courts might regularly proceed to render final judgments that might be different, or even be opposed, and there be no error disclosed by the record of either court upon which the judgment could be reversed. The amendment of the petition is denied, and the cause remanded, witb costs. v.24F,no.12-42
CONSOLIDATED BUNGING ApPARATUS CO. 'D. AMERIOAN PROOESS MENTATION CO.
(Circult Court. E. D. WisconBin. August, 1885.)
EQUITY PRACTICE-DoCKET FEE-REV. ST. i 824-CASE DISCONTINUED. No docket fee is taxable in a suit in equity voluntarily discontinued by the complainant before allY hearing, either interlocutory or final.
In Equity. Banning Banning, for complainant. Gotzhllusen, Sylvester, Scheiber &; Sloan, for defendant. DYER, J. This is a suit in equity; and after issue joined by bill, answer, and replication, but before the taking of any proofs, and without the determination of any question in the case by the court, the' complainant voluntarily dismissed its bill. In the taxation of costs, the defendant contends that it is entitled to an allowance of a docket fee of $20 under the first clause of section 824 of the Revised Statutes. I have examined all the decisions that bear upon the question, and fully agree with the conclusions announced in Goy v. Perkins, 13 FED. REP. 111, by Mr. Justice GRAY and Judge LOWELL, and concurred in by Judge NELSON. and with the ruling in Yale Lock Mllnufg Co. v. Golvin, 14 FED. REP. 269, made by Judge WHEELER. The docket fee of $20 is only taxable in a suit in equity "on final hearing." What constitutes a final hearing within the meaning of section 824 is clearly and most satisfactorily shown by Mr. Justice BLATCHFORD in Woostet· v. Handy, 23 FED. REP. 52, and by the cases cited in his opinion. There was no such hearing, nor, indeed, any hearing, in this case. The taxation of a docket fee of $20 must therefore be disallowed. No docket fee whatever is given by the statute in a suit in equity voluntarily discontinued by the complainant, as this suit was, before any hearing, either interlQcutory or final.
OZARK LAND Co.
LEONARD and others.
(Uircuit Com't, E. D. Arkansas. May, 1885.)
INJUNCTION-NoT SUSPENDED BY SUPERSEDEAS. . A decree granting an injunction is not nnlliflerI or suspended by an appeal to the suprt:me court, though all the reqUisites for a are complied with.
In Equity. John B. Jones, for plaintiff. T. W. Brown and O. P. Lyles, for defendants.