52 description of a party as "of" a specified State; or of a certain county,53 city, or town, in a specified State; 54 or that a party "lives" or "lived" in a specified city and State.55 The petition should also state the non-residence of the defendant at the time, both when the action was begun 56 and when the petition was filed.57 An allegation of citizenship and residence in another State is equivalent to an allegation of non-residence in the State where the suit is brought.58 It is the safer practice to allege the residence of the plaintiff within the district at both those times.59 It seems that an averment that a party is "of" a specified place is equivalent to the statement that he is a resident thereof.60 The omission from the plaintiff's writ,61 or pleading; 62 of any allegation of diversity of citizenship, is immaterial; provided that this is duly alleged in the petition of removal. Where a corporation is a party, the petition should state that it was organized or created by, or under, the laws of a specified State or foreign government.63 The allegation that it is a citizen of a certain State is insufficient; when it is not described 54 Grand Trunk R. Co. v. Twitchell, 59 Fed. 727, 8 C. C. A. 237, 21 U. S. App. 45; Dinet v. Delavan, 117 Fed. 978. 55 Gale v. Southern Building & Loan Ass'n, 117 Fed. 732.. 56 Martin v. Snyder, 148 U. S. 663, 11 Sup. Ct. 706, 37 L. ed. 602; Freeman v. Butler, 39 Fed. 1; Camprelle v. Balbach, 46 Fed. 81. 57 Martin v. Snyder, 148 U. S. 663. Contra, Baltimore & O. R. Co. v. Doty, C. C. A., 133 Fed. 866. 58 Lawrence v. Southern Pac. Co., 165 Fed. 241; Zebert v. Hunt, 108 Fed. 449. Contra, Fife v. Whittell, 102 Fed. 537. 59 Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264. Contra, Baltimore & O. R. Co. v. Doty, C. C. A., 133 Fed. 866. See Gillespie v. Pocahontas Coal & Coke Co., 162 Fed. 742; La Belle Box Co. v. Stricklin, C. C. A., 218 Fed. 529. 60 Hennessy v. Richardson Drug Co., 189 U. S. 25, 23 Sup. Ct. 532, 47 L. ed. 697; Hennessy v. Moise, 189 U. S. 35, 23 Sup. Ct. 534, 47 L. ed. 698. 61 Ladd v. Tudor, Fed. Cas. No. 7,975 (3 Woodb. & M. 325). 62 City of Ysleta v. Canda, 67 Fed. 6. 63 Sun Printing & Publishing Ass'n v. Edwards, 194 U. S. 377, 48 L. ed. 1027; Lonergan v. Illinois as a corporation, although it has a company name.64 An averment stating that it was a corporation and a resident of a given State was held to be equivalent to an allegation that it was organized under the laws thereof.65 An allegation that a corporation is duly established by law, having its principal place of business" in a specified State, is insufficient.66 It is insufficient to allege that the defendant "claims to be" a corporation organized under the laws of a specified State as a company of a specified character.67 Where the corporation is chartered by several States, the facts which show the difference of citizenship, such as the name of the State which first gave it its charter, must be specifically pleaded.68 It is insufficient to allege merely the residence,69 or the location,70 of the corporation, even if it Central R. R. Co., 55 Fed. 550; Ward v. Blake Mfg. Co., C. C. A., 56 Fed. 437; Frisbie v. Chesapeake & O. Ry. Co., 57 Fed. 1; Shattuck v. No. Br. & Mer. Ins. Co., 58 Fed. 609; De Loy v. Travelers' Ins. Co., 59 Fed. 319; Robertson v. Scottish U. & Nat. Ins. Co., 68 Fed. 173; Continental W. P. Co. v. Lewis Voight & Sons, 106 Fed. 550; Winkler v. Chicago & E. I. R. Co., 108 Fed. 305; Dalton v. Milwaukee Mechanics' Ins. Co., 118 Fed. 876; Knight v. Lutcher & Moore Lumber Co., 136 Fed. 404. See Southern Ry. Co. v. Hudgins, 33 S. E. 1011, 108 Ga. 524, supra, § 135. An allegation that defendant is a corporation under the laws of the State of Virginia, and a citizen of Virginia, and a resident of the Western District of that State, is equivalent to an allegation that it was created by, or organized under, or existing under, the Virginia laws. Mathieson Alkali Works v. Mathieson, 150 Fed. 241. 64 Thomas v. Board of Trustees of Ohio State University, 195 U. S. 207, 25 Sup. Ct. 24, 49 L. ed. 160; Lonergan v. Illinois Cent. R. Co., 65 Fed. 550; Frisbie v. Chesapeake 65 Vestal v. Ducktown Sulphur, Copper & Iron Co., 210 Fed. 375. Contra, Wells v. Russellville Anthracite Coal Mining Co., 206 Fed. 528. 66 New York & New England R. R. Co. v. Hyde, C. C. A., 56 Fed. 188, 191. 67 Lownsdale v. Gray's Harbor Boom Co., 117 Fed. 983. 68 Dodd v. Louisville Br. Co., 130 Fed. 186. 69 Winkler v. Chicago & E. I. R. Co., 108 Fed. 305; Cleveland, C., C. & St. L. Ry. Co. v. Doerr, 41 Ill. App. 530. 70 Germania Fire Ins. Co. V. Francis, 11 Wall. 210, 20 L. ed. 77. is a national bank.71 It is unnecessary to aver the citizenship of the corporation, when its creation or organization by the laws of a specified State are sufficiently pleaded.72 It has been held that it is unnecessary to aver that a corporation, created by or under the laws of another State, or a foreign country, is not a resident of the State and district where the suit is brought; 78 nor that the defendant corporation had the same citizenship at the time of the commencement of the suit as when the petition was filed, although the fact that the plaintiff's citizenship, at the time when the suit was brought, was the same as at the time when the petition was filed must be alleged when the corporation removes the case; but it is the safer practice to allege both those facts.75 When the removal is because of a separable controversy, the 71 Thomas v. National Bank, C. C. A., 106 Fed. 438. A description of the plaintiff in the title of a pleading, as a national bank, is insufficient to show that it was incorporated under the laws of the United States, when the only allegation upon the subject in the pleading is that plaintiff is a corporation engaged in the banking business in a speci fied State and county. Alexandria Nat. Bank v. Willis C. Bates Co., C. C. A., 160 Fed. 839. 72 Shattuck v. No. Br. & Mer. Ins. Co., 58 Fed. 609; Robertson v. Scottish U. & Nat. Ins. Co., 68 Fed. 173; Block v. Standard Distilling & Distributing Co., 95 Fed. 978; Continental W. P. Co. v. Lewis Voight & Sons, 106 Fed. 550; Lee v. Atlantic Coast Line R. Co., 150 Fed. 775. 73 Myers v. Murray, Nelson & Co., 43 Fed. 695, 11 L. R. A. 216; Shattuck v. North British & Mercantile Ins. Co., 58 Fed. 609, 7 C. C. A. 386, 19 U. S. App. 215; Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co., 60 Fed. 929; Charleston Bridge Co. v. Phoenix Ins. Co., 60 Fed. 929; judgment affirmed, Phoenix Ins. Co. v. Charleston Bridge Co., 65 Fed. 628, 13 C. C. A. 58, 25 U. S. App. 190; Howard v. Gold Reefs of Georgia, 102 Fed. 657; Roberts v. Pac. & A. Ry. & Nav. Co., 104 Fed. 577; Baltimore & O. R. Co. v. Doty, C. C. A., 133 Fed. 866; Koshland v. National Fire Ins. Co. (Oregon), 49 P. 845. Contra, Hirschl v. J. I. Case Threshing-Mach. Co., 42 Fed. 803; Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Guinault v. Louisville & N. R. Co., 41 La. Ann. 571, 6 South. 850. 74 National Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. ed. 87 (where the complaint averred that the defendant was then a foreign corporation); Roberts v. Pacific & A. Ry. & Nav. Co., 104 Fed. 577, 579; Continental Wall Paper Co. v. Lewis Voight & Sons, 106 Fed. 550. Contra, Dalton v. Germania Ins. Co., 118 Fed. 936.. 75 Laskey v. Newtown Mine Co., 56 Fed. 628; Foster v. Paragould S. E. R. Co., 74 Fed. 273. petition should show how the controversy arises and should name the parties to the same, in addition to the other jurisdictional allegations except perhaps when that clearly appears in the plaintiff's pleading.76 Where a defendant, who is a citizen of the same State as the plaintiff, is joined with another, who is a citizen of a different State, and a removal is sought because of his fraudulent misjoinder, the petition or its accompanying affidavits must state specifically, the facts which show the fraud; except, perhaps, when they are manifest upon the face of the plaintiff's pleading.78 Defects or imperfections in a petition for removal which are formal or modal are waived when no specific objection thereto is duly made.79 77 § 545a. Second petition for removal. A second petition for removal may be filed after the cause has been remanded when, before the trial upon the merits, the case has been changed by the plaintiff's acts, by amendment, voluntary dismissal as to certain defendants, or otherwise, so as to remove the objection, to the removal and bring the case for the first time within the statute.1 The decision of the court that there is no case against one of the defendants does not justify the second petition.2 § 545b. Allegations to show that suit comes under Constitution or laws of the United States. Where a removal is claimed upon the ground that the suit arises under the Constitution and laws of the United States, the petition must state the facts showing that such is the case, unless they appear in pleadings previously filed or served. If so, they may be incorporated into 76 Gates Iron Works v. James E. Pepper & Co., 98 Fed. 449; Laden v. Meck, C. C. A., 130 Fed. 877. See Connell v. Smiley, 156 U. S. 335, 341, 39 L. ed. 443, 445. But see Donovan v. Wells-Fargo & Co., C. C. A., 169 Fed. 363. 77 Offner v. Chicago & E. R. Co., C. C. A., 148 Fed. 201, infra, § 548a. 78 Supra, note 15; infra, § 545c. 79 White v. Chase, C. C. A., 201 Fed. 896. § 545a. 1 Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 93, 18 Sup. Ct. 264, 42 L. ed. 673; Key v. West Kentucky Coal Co., 237 Fed. 258, 261. 2 Springer v. Am. Tobacco Co., 208 Fed. 199; Key v. West Kentucky Coal Co., 237 Fed. 258, 261. See supra, § 545. § 545b. 1 Gold W. & W. Co. v. Keyes, 96 U. S. 199, 204, 24 L. ed. 656, 659; Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992; Trafton v. Nougues, 4 Sawyer 178; New Castle v. Postal Telegraph Cable Co., 152 Fed. 572; Hubbard v. Chicago, M. & St. P. Ry. Co., 176 Fed. 994; Rural Home Tel. Co. v. Powers, 176 the petition by reference.2 Where it does not appear in the plaintiff's pleading, that the defendant is a corporation incorporated by an act of Congress, or that the defendant is a receiver appointed by the Federal court; it is the better practice to allege in the petition such fact if it exists; but the court will take judicial notice of the incorporation of a party by an act of Congress. When it is claimed that the plaintiff has fraudulently omitted, from his pleading, a material allegation, which would show that the case arose under the Constitution or a law or a treaty of the United States; that fact must be alleged in the petition for the removal. It has been held that, where the petition was based upon a difference of citizenship, the removal would not be sustained, although the record showed that the case arose under the Constitution or laws of the United States.7 1 § 545c. Allegations as to value of matter in dispute. The petition for a removal should show that the matter in dispute exceeds, exclusive of interest and costs, the sum or value of three thousand dollars; 1 unless this appears elsewhere in the record.2 An allegation that the "amount in dispute;" or the "amount involved" in the suit, exceeds the jurisdictional amount, is .ordinarily sufficient, unless the record shows the contrary. The amount stated in the prayer for relief or recovery governs although in the body of the pleading, a greater amount of damages is averred.5 Fed. 986; Dale v. Smith, 182 Fed. 360. 2 Ibid. See also cases cited, supra. 3 Texas & P. Ry. Co. v. Cody, 166 U. S. 606, 41 L. ed. 1132. 4 Winters v. Drake, 102 Fed. 545. 5 Matter of Dunn, 212 U. S. 374, 53 L. ed. 558. 6 Winters v. Drake, 102 Fed. 545. See Washington v. Island Lime Co., 117 Fed. 777, 778. 7 Woolridge v. McKenna, 8 Fed. 650. But see authorities cited, su pra, § 544. § 545c. 1 Keith v. Levi, 2 Fed. 743 (1 McCrary 343); Banigan v. City of Worcester, 30 Fed. 392, supra, $545. It has been said, that, unless this appears in the record, an allegation to that effect in the petition is insufficient. Sturgeon River Boom Co. v. W. H. Sawyer Lumber Co., 89 Fed. 113. 2 Chambers v. McDougal, 42 Fed. 694. 3 Blackburn V. Portland Gold Min. Co., 175 U. S. 571, 20 Sup. Ct. 222, 44 L. ed. 276. 4 State v. Frost, 89 N. W. 915, 113 Wis. 623. See Studebaker v. Salina Waterworks Co., 195 Fed. 164; §§ 6, 13, 135, supra. 5 Iowa Central Railway Company v. Bacon, 236 U. S. 305. |