KELLAM v. KEITH, 144 U.S. 568 (1892)

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.
No. 269.
Argued and submitted April 1, 1892. Decided April 11, 1892.

On the authority of Stevens v. Nichols, 130 U.S. 230, Jackson v. Allen, 132 U.S. 27, and La Confiance Compagnie v. Hall, 137 U.S. 61, the decree below in this case is reversed and the cause remanded with directions to

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remand it to the Circuit Court, it not appearing in the record that the diverse citizenship which was the cause of removal from the State Court existed at the commencement of the action. In such case the appellees are entitled to their costs in this court and in the Circuit Court.

THIS was a suit for the cancellation of a deed, and to compel a reconveyance of land, commenced in the District Court of Shawnee County in the State of Kansas. The complaint did not disclose the citizenship of the parties. The defendants, before pleading, presented a petition as follows for the removal of the cause to the Circuit Court of the United States:

“And now come the said defendants Edward P. Kellam and Cyrus K. Holiday, by Rossington, Smith Dallas and John T. Morton, their attorneys, and represent and aver that in this action the matter in dispute exceeds, exclusive of costs and interest, the sum and value of five hundred dollars, and in fact exceeds, exclusive of interest and costs, the sum of two thousand dollars, and that in this suit there is a controversy which is wholly between citizens of different States, the said plaintiff being a citizen of the State of Nebraska and both of said defendants being citizens of the State of Kansas, and that the controversy can be fully determined as between them, the said plaintiff and said defendants.

“These defendants therefore ask that this cause be removed into the Circuit Court of the United States in and for the District of Kansas to be held in said district; that this court accept this petition and the bond herewith filed and proceed no further in this action, and that this cause be removed into said Circuit Court.”

After removal the Circuit Court ordered the pleadings to be recast, whereupon the plaintiff filed a bill in equity in which the parties were described as follows: “Morrell C. Keith, of North Platte, Nebraska, and a citizen of the State of Nebraska, brings this his bill against Edward P. Kellam, of Topeka, and a citizen of the State of Kansas, and Cyrus K. Holliday, of Topeka, and a citizen of the State of Kansas; and thereupon your orator complains and says, etc.”

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The case then proceeded to judgment, and, a decree for the plaintiff being rendered, the defendants appealed to this court.

Mr. W.H. Rossington, Mr. Charles Blood Smith, Mr. Everett J. Dallas and Mr. John T. Morton, for appellants, submitted on their brief.

Mr. E.S. Quinton for appellee. Mr. A.B. Quinton and Mr. A. Bergen were with him on the brief.

THE CHIEF JUSTICE:

Upon the authority of Stevens v. Nichols, 130 U.S. 230 Jackson v. Allen, 132 U.S. 27; La Confiance Compagnie v Hall, 137 U.S. 61, and other cases, the decree in this case must be reversed, at the costs of appellants in this court and in the Circuit Court, and the cause remanded to the Circuit Court with directions to remand it to the state court.