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Hardinge v Kuntz et al.

Jurisdiction-Removal of Cause-Diversity of Citisenship-Record, Verity of.

An action brought in a state ourt will not be removed on the ground of diversity of citizenship of the parties, to a United States district court of a district of which neither the plaintiff nor the defendant is a resident.

Applications for the removal of causes from state courts to United States district courts must be disposed of on the status of the record. The record imports absolute verity, and can not be successfully impeached by allegations in the petition for removal contradicting the record, merely because the allegations are not denied by other parties to the suit.

An action brought in a state court will not be removed to a United States district court, on the ground of diversity of citizenship, upon the petition of a defendant which avers that he was a "resident,” but which fails to aver that he was a "citizen" of a state, other than that of which the plaintiff was a citizen, when the suit was brought.

An action pending in a state court, in which two of the defendants are residents of the state in which the action is pending, can not be removed to a United States district court, upon a petition of a third defendant on the ground that the plaintiff and the petitioner are residents of different states, both of which are other than that in which the action is pending.

Petition. No. 4 August Term, 1920. C. P. York County.
George Wharton Pepper, of Philadelphia, and Stewart & Gerber, for petition.
Niles & Neff, for respondents.

WANNER, P. J., November 29, 1920.- This is a suit in equity, brought in a state court in the Middle District of Pennsylvania, by a citizen of the State of New York against a citizen, and a corporation of Pennsylvania, and a resident of the State of Illinois. The latter defendant, Robert G. McGann, now petitions for the removal of the case to the United States District Court for the Middle District of Pennsylvania, solely upon the ground of the diversity of citizenship between the parties.

The petition alleges that the interest of William J. Kuntz, one of the Pennsylvania defendants, has been assigned to the plaintiff, and that the other defendant, viz: The York Trust Company, has petitioned for leave to pay into court the securities, &c., in controversy, which are in its possession, and be thereupon dismissed as a party to the suit, and that therefore the plaintiff and the petitioner are the only interested and active parties remaining in the case.

No answer denying these allegations having been filed, if they are taken as true, this application may be disposed of as if the suit was pending solely between the plaintiff and the petitioner. The case was argued by counsel on that assumption,

As only cases of which the district court would have had original jurisdiction are removable to it from state courts, it is necessary to determine the nature and extent of the jurisdiction of the United States district courts as established by the United States Judicial Code (Comp. Stat. 1916, Sec. 991).

Sec. 24 provides that district courts shall have original jurisdiction of suits between citizens of different states, and between citizens of a state and foreign states, citizens, and subjects.

Sec. 28 provides that any suits of which said district court had been given jurisdiction by said code, may be removed by the defendant or defendants therein, being non-residents of the state wherein such suit has been brought.

Sec. 51 provides that no civil suit shall be brought in any district court against any person by an original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is

Hardinge v Kuntz et al.

founded only on diversity of citizenship it may be brought in the district of the residence of either the plaintiff or defendant.

Under these provisions of the Judicial Code, we are of the opinion that this suit as originally brought was within the jurisdiction of the United States District Court, for the Middle District of Pennsylvania, where two of the defendants resided.

But treating it as counsel have done as only a suit between the plaintiff, who is a citizen of New York, and the petitioning defendant, who is a citizen of Illinois, the suit would not be within the jurisdiction of the District Court for the Middle District of Pennsylvania, under the provisions of section 51 of the Judicial Code because that district is not the residence of either the plaintiff or the defendant. It would not therefore be removable to that court.

This is the conclusion reached by the Supreme Court of the United States, in Ex Parte Wisner, 203 U. S., 449 (51 Law Ed., 264), which case so far as this portion of its ruling is concerned has not been reversed or expressly qualified by that Court in any subsequent decision. The authority of that case, and the soundness of its reasoning has been questioned in the lower Federal courts, and in several instances it has not been followed. This conflict of opinion in the lower courts, however, would not justify this court in refusing to follow a decision which beside being authoriative in its source, seems to be founded upon a sound and reasonable construction of the statutory law involved in the case. This is especially so in view of the fact that the latest Federal cases recognize its authority as unshaken: Kubie Co. v Lehigh Val. R. R. Co., 261 Fed., 806-807; Kansas Gas & Elec. Co. v Wichita Nat. Gas Co., 266 Fed., 614 (July 15, 1920); Perratte v Ill. Com. Men's Assn., 267 Fed., 583; Batcheldorv Quimby Land Co., 267 Fed., 483.

But if this application is disposed of on the status of the record itself where all the original defendants are still parties to the suit, which is the method prescribed in the Federal decisions on the subject, we also reach the conclusion that there can be no removal of this case.

There is nothing of record showing that the Pennsylvania defendants have divested themselves of their interests in the case, or are no longer necessary parties thereto, as alleged in this petition, and a contrary inference would seem to arise from the fact that they were notified to appear at the hearing of this application. The record imports absolute verity, and in our opinion, it cannot be successfully impeached by the allegations of the petition contradicting the face of the record itself, merely because such allegations are not denied, by other parties to the suit.

According to the record as it stands, this is an application for the removal of a suit from a state court, where two of the defendants are residents of the state in which the case is pending.

That this cannot be done has been repeatedly held by the Federal courts: McNeal Pipe & Foundry Co. v Howland, 5 S. E. Rep., 745; Blackburn v Blackburn, 142 Fed., 901; Arkansas Val. Co. v Cowenh ren, 41 Fed., 450; Parkinson v Barr, 105 Fed., 81.

There is also another reason why this application must be refused, which the Court is bound to take notice of, though not presented by counsel at the argument. The petition does not allege the citizenship of the defendant in the State of Illinois, at the time of the commencement of this suit. The allegation that he was a "resident" of the State of Illinois at the time of filing the petition for the removal of the case, is sufficient to show the jurisdiction of the district court, or to entitle the petitioner to a removal of the case on the ground of diversity of citizenship alone.

Hardinge v Kuntz et al.

Neither does the petition for removal state that the York Trust Company is incorporated under the laws of the State of Pennsylvania, which has been held necessary to establish its citizenship therein: Crisby v Cuba R. R. Co., 158 Pa. Fed., 144-146-152; Gage v Riverside Trust Co., 156 Fed., 1002.

The right of removal of cases to the Federal courts, being purely statutory, it is held that it must clearly appear from the record itself that the case is removable under the provisions of the Judicial Code, and not merely from the allegations of the petition. The matter of citizenship and the other jurisdictional facts upon which the right of removal rests must be established and considered as of the date of the commencement of the suit: Phoenix Ins. Co. v Pechner, 95 U. S., 185 (24 Law Ed., 427); Wilson v Oswego Twp., 151 U. S., 5665 (38 Law Ed., 70-75); Grantley v Hartley, 113 U. S., 732 (28 Law Ed., 1150); R. R. Co. v Koontz, 104 U. S., 5 (26 Law. d., 43).

And now, to wit, November 29th, 1920, the petition of the defendant, Robert G. McGann, for the removal of this case to United States District Court for the Middle District of Pennsylvania is refused, and the petitioner is directed to pay the costs of the proceedings.

Znidarcich v Znidarcich.

Divorce

-Notice by PublicationVariation in Names Personal Service.

When notice in divorce proceedings is given by publication, the record must be free from error, so that where there was a variation in the name of respondent as it appeared in the libel and in the advertisement a divorce was refused.

Misspelling the name of respondent in notices of a divorce proceeding where personal service is had and the respondent appears is harmless error.

Divorce.

No. 1335 January Term, 1920. C. P. Allegheny County.

Alfred Cahen for libellant.

CARPENTER, J., November 9, 1920.—The Master, in a carefully prepared report, finds the evidence sustains the charge laid in the libel, but calls attention to an error in the several notices given by advertisement. The libelant's name as set out in the libel is Znidarcich, whereas in the advertisements, as also in the appointment of the Master, it appears as Zridarcic. Had the subpoena been served personally on respondent and personal notice given of the time and place of hearing before the Master, the misspelling of the name when the Master was appointed, or elsewhere in the pleadings or testimony, would have been harmless error; but when the only notice given the respondent is by advertisement, it must be free from error, and especially in so vital a matter as the names of the parties. Notice to Rudolph Zridarcic is not notice to Rudolph Znidarcich.

See Opinion by Reid, J., in Katalenich v Katalenich, 68 P. L. J., 377. Divorce refused without prejudice.

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A rule to open a judgment confessed on a lease was made absolute where the evidence as to whether defendant had "sublet" the premises contrary to the terms of the lease was conflicting and made out a case of reasonable doubt. This would be a question for the jury.

C. P. Allegheny

Rule to Show Cause. No. 1669 October Term, 1920.
County.

S. H. Huselton, for plaintiff.
Jos. M. Friedman, for defendant.

Before HAYMAKER and KLINE, JJ. KLINE, J., October 23, 1920.—This case comes before us, upon a rule to show cause why the judgment for possession entered in this case should not be opened, defendant let into a defense, and proceedings be stayed in the meantime.

This case arises out of an amicable action in ejectment to recover possession of the premises situate on the South Side, City of Pittsburgh, Pennsylvania; being all that certain two-story brick dwelling, situate on Paul Street, otherwise known as Shannon's Alley, and being the southerly half of lots 1010 and 1014, in the “Grandview Annex Plan,” now in the actual possession of the defendant.

It appears from the record that, Laura Winters, the legal plaintiff, in the above cause, on April 3rd, A. D. 1920, entered into an agreement in writing with Harry Cohen, defendant, leasing to him the premises in controversy for the period of one year from May 1st, A. D. 1920, expiring May 1st, A. D. 1921; at a stipulated rental, and as a part of said lease incorporated an option for the purchase of the property described in the said lease at a stipulated sum of $5,000.00.

It is further provided in and by the terms of said agreement or lease, "that tenant should not sub-let,” the premises or any part thereof without the written consent of the lessor, under a penalty of instant forfeiture of the premises and the payment of $100.00 (one hundred dollars), additional rent for so doing.

It further appears that notices was served on the defendant on August 4th, 1920, as follows:

"You are further notified that by reason of you having violated the terms of your lease by sub-letting, to vacate the premises within ten days hereof, and that you cause to be paid the sum of $100.00, damages, for such sub-letting, as is provided by the terms of your lease.”

It appears that on or about the 4th day of August, 1920, notice was served on the defendant as follows:

“This is to notify you that I have secured a purchaser for the property which you now occupy and that unless you make purchase of same provided under the terms contained in your lease, dated April 1st, 1920, I will sell same within ten days from the date hereof. The failure to reply or a refusal to make payment and take the title, will be construed as an absolute forfeiture on your part of the agreement.”

That on the 9th day of September, 1920, after notic to the defendant, Harry Cohen, to purchase the premises as aforesaid, Laura Winters, the legal plaintiff, sold and conveyed the same to one Lena Landis, use plaintiff herein, for valuable consideration.

as

Winters, for use, v Cohen.

It is further stipulated and agreed in said contract that the defendant, Harry Cohen, upon receiving ninety days' notice in writing would vacate said premises in case of sale thereof.

That the defendant replied to said notice to the effect that he, the defendant, was under no obligation either to vacate or purchase the property, until the time limited in the lease and option expired.

That the plaintiff on September 11th, A. D. 1920, entered up a confession of judgment in ejectment, against Mr. Cohen, the defendant, alleging violation of the covenant to sub-let, and also for the violation of the defendant to purchase the property in controversy within a limited period.

We will consider first the main question in the case, namely, the construction to be placed upon the option to buy, as set forth in the lease. The language of the option being:

"It is understood and agreed by both parties, that Harry Cohen has the option to buy these premises at any time on or before May 1st, 1921, at the agreed price of $5,000.00, less the amount paid by him as rental, said Harry Cohen in case of purchase at any time during this period is to pay his pro-rata share of the taxes and water rent assessed against said premises. This option to purchase to exclude all other purchasers for the above named period, excepting, that said Cohen refuses to purchase when notified that any other purchaser desired to buy."

On the one side we have the plaintiff contending, that under the terms of the option contained in the lease, that in the event the plaintiff secured another purchaser, and upon notice to the defendant, he refused to purchase the same, is an absolute forfeiture of the agreement,

On the other side we have the defendant, contending, that the option to purchase meant to exclude all other purchasers for the period set forth in the agreement, and, the language which follows: “except that said Harry Cohen refuses to purchase when notified any other purchaser desired to buy,is wholly inconsistent with and in conflict with the express terms of the option.

With reference to the clause in the contract providing for an option to purchase the property, on or before May 1st, 1921, a reasonable construction of this opinion requires it inoperative until on or about May 1st, 1921.

That part of the language of the opinion which follows is significant:

"This option to purchase, to exclude all other purchasers for the above named period, to wit, on or before May 1st, 1921.”

The language which follows the preceding:

"Except that Cohen refuses to purchase when notified, any other purchasers desire to buy," is wholly inconsistent with and in conflict with the express terms of the option.

All contracts of this character are to be construed in favor of the tenant or purchaser, and it is not within the power of the purchaser to insert one thing and at the same time to surround it with a restriction, that is incompatible with the meaning and intent of the contract, and we are therefore of the opinion that the option of the defendant to purchase extended until May 1st, 1921.

The other question in this case is whether or not the defendant violated one of the terms of the lease which reads as follows:

“That the tenant shall not sub-let the premises or any part thereof without the written consent of the lessor," under penalty of instant forfeiture of the premises, and the penalty of $100.00 additional rent for so doing.

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