APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF UTAH
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
Had the Federal court the power to permit the amendment of the petition for removal? 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 removal was defective. If it had been sufficient 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 section 1 of chap. 866, 25 Stat. 434, jurisdiction is given to the Circuit Courts of all suits of a civil nature "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 different States." By section 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 non-residents. The petition for removal, which was duly verified, alleged the existence 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; Akers v. Akers, 117 U.S. 197; Stevens v. Nichols, 130 U.S. 230. But this does not change the fact that the language of the petition follows that of the statute in stating the existence of that which the statute makes the basis of a right of removal.
It is also true that when a record presented to this court fails to show a diversity of citizenship, both when the suit was commenced and when the petition for removal was filed, a reversal has been ordered and the case sent back to the Circuit Court with directions to remand to the state court. Stephens v. Nichols, supra; Crehore v. Ohio &c. Ry. Co., 131 U.S. 240; Jackson v. Allen, 132 U.S. 27; La Confiance Compagnie Anonyme d'Assurance v. Hall, 137 U.S. 61; Kellam v. Keith, 144 U.S. 568; Mattingly v. N. W. Va. R. R. Co., 158 U.S. 53. In none of these cases does it appear that the defect was noticed in the Circuit 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 affirmatively appear. It is also true that in Crehore v. Ohio &c. Ry. Co., supra, this court was asked to grant leave to the Circuit Court to permit an amendment of the defective removal proceedings, and the application was denied, but that was after the case had been finally disposed of in the Circuit Court and the insufficiency of the 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 has 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. Congress has made ample provision for the amendment of process. Section 948, Rev. Stat., 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 section 954 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. Government, 18 How. 137, a petition for removal was defective in that it simply alleged residence and not citizenship, but was corrected, over objection, by ...