Laird v. Railroad , 55 N.H. 375 ( 1875 )

This is a petition to remove an action from the circuit court of this state into the circuit court of the United States for this district. The statute under which this petition is brought is the third clause of section 639 of the Revised Statutes of the United States, approved June 22, 1874, which is as follows:

"Third. When a suit is between a citizen of the state in which it is brought and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition, he makes and files in said state court an affidavit stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such state court." There is a further provision for filing bond with surety,c., for his entering the suit in the federal court, with copies, c., which it is unnecessary to notice further.

The only question before us is, whether this is a suit "between a citizen of the state in which it is brought and a citizen of another state." It was such a suit at the time it was brought and entered in court, and so continued up to March, 1874; and the case sent up to us from the court below shows that since March, 1874, neither party has been a citizen of this state in which the suit was brought.

The right of removal depends upon the citizenship of the parties, — but whether at the time the suit was brought or at the time the petition for removal was filed, is the question presented for determination.

It was in the power of the defendants to remove this suit into the federal court upon petition filed before the removal of the plaintiff into Vermont. This privilege they did not see fit to avail themselves of. The state court had jurisdiction of the case up to that time, liable, however, to be divested by removal of the cause to the federal court. After the removal of Laird from the state, the action ceased to be any longer a suit "between a citizen of the state in which it was brought and a citizen of another state," but became a suit between citizens of the same state.

It has been repeatedly settled in the supreme court of the United States, that when the jurisdiction of the federal court has once attached, it cannot be divested by a change in the citizenship of the parties. Wallace v. Torrance, 9 Wheat. 537; Morgan v. Morgan, 2 Wheat. 290; Dunn v. Clarke, 8 Pet. 1; Clarke v. Matthewson, 12 Pet. 170; Greene v. Custard, 23 How. 484; Kanouse v. Martin, 15 How. 207.

If this suit had been removed to the United States circuit court before the removal of the plaintiff to Vermont, the jurisdiction of that court having once attached to the suit could not have been affected or divested by such removal of the plaintiff. The state court has had jurisdiction of this case since the commencement of the suit, liable to be defeated as long as the parties remained citizens of the respective states in which they had their domicile at the time the suit was commenced; but no steps having been taken to divest the state court of jurisdiction by removal to the federal court when it was in the power of the defendants so to do, it cannot be divested of its jurisdiction when the condition of citizenship upon which such right of removal is grounded no longer exists. It will hardly be contended that where a suit is commenced in a state court between citizens of the same state, the defendant, if the plaintiff should remove into another state, would acquire the right to remove the cause into the federal court, because, upon the strength of the above decisions, the state court cannot be ousted of its jurisdiction when it has once attached.

Upon the same ground I think this petition must be denied, to wit, that the cause not having been removed while the parties were citizens of different states, the jurisdiction of the state court became unalterably attached when the parties became citizens of the same state, and there no longer existed the ground for removal provided by the statute. I know of no practice of the court to authorize the granting of the plaintiff's motion, to be hereafter described in the future orders and processes issued in this case as of St. Johnsbury, Vermont. Although I see no particular objection to it, I see no necessity for granting the motion.

Petition denied.