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EWING, District Judge. These cases are before the court on motions to remand to the common pleas of Fayette county, Pa., from which they were removed by the several defendants without leave or authority of that court.
It seems that, when application was made to the court in which the suits were originally brought, it embraced, not only a petition to remove, but also a petition to consolidate various cases against the same company, which process of consolidation the defendants of their own volition made in transferring the causes to this court, although the applications aforesaid had been denied by the court of original jurisdiction.
Several reasons are assigned in support of the motions to remand but the only one thought necessary to refer to is thạt the application for the removal of the causes from the state court was made too late. The act of Congress in such cases provides that the petition for removal may be filed “at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which said suit is brought to answer or plead to the declaration or complaint of the plaintiff.” The rules of the court of common pleas of Fayette county aforesaid provide that:
"In all actions on policies of insurance, etc., if the plaintiff shall file on or before the return day of the writ, a statement showing the amount he believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, etc., he shall be entitled to judgment for want of an affidavit of defense, as follows, viz.: If the writ shall have been duly served and the said statement shall have been duly filed and a copy thereof served on the defendant prior to the return day, judgment by default may be entered any day after fifteen days subsequent to the service of said statement, etc., unless the defendant files an affidavit of defense.”
The provisions of this rule were complied with by the plaintiff in these cases, so far as the service of the writ and the filing and serving of a copy of the statement on the defendant is concerned, and the defendants also complied with its provisions by filing, on the return day, affidavits of defense. The writs in all these cases, except in those cases embraced in No. 94 of November term, and one of the cases embraced in No. 95 of November term, were served on March 14, 15, and 16, 1906, and those in No. 94 and one in No. 95 of November term, on March 20, 1906, and the return day of all was April 2, 1906. By the above cited court rules the defendants were required to file affidavits of defense on April 2d in all the said cases, except those served on March 20th, where they were required to file them on April 4th. But the defendants filed all their affidavits of defense on April 2d, and the petition for removal was not presented to the court until April 13th.
It is now contended by the plaintiffs that, the petitions for removal having been presented after the defendants were required by the rules of the state court to file affidavits of defense and did so file such affidavits, it was then too late to remove said causes; while the several defendants insist that the requirements of the act of Congress that the application for removal shall be made before they are required to answer or plead to the declaration or complaint of the plaintiff
does not embrace affidavits of defense, but merely technical answers and pleadings. These claims of the respective parties present the questions before us for determination. The procedure act of May 25, 1887 (Laws Pa. 1887, p. 271, No. 158), in its third section directs that "the statement * * in the action of assumpsit shall be replied to by affidavit,” and the above cited rule of the state court in section 4 declares that:
"In all cases where an affidavit of defense is required, it shall set forth specifically and at length the nature and character of the same and shall state whether the defense is to the whole or a part of the claim, and if only to a part it shall state to what part, and all items of the plaintiff's claim not traversed or denied shall be taken as confessed."
Conceding that an affidavit of defense in Pennsylvania practice is no part of the pleadings, as declared by the Supreme Court in Muir v. Insurance Company, 203 Pa. 338, 53 Atl. 158, yet it is an answer to the plaintiff's claim, and under the said rules of court determines what the issue between the parties is, for only those matters alleged on the one side and denied on the other are by those rules put in issue, and, indeed, the answer of the defendant under the rules of court of Allegheny county makes the answer an affidavit of defense, for in section 1 of rule 8 it is directed that the defendant shall “file an answer verified by affidavit and such items of the claim and material averments of fact as are not directly and specifically traversed and denied by the answer shall be taken as admitted,” and by section 2 it is further provided :
"If the specification and statement be filed with the præcipe, they shall be taken as an affidavit of claim, and defendant shall, without further notice, file his answer thereto within the time required for filing affidavits of de fense, which answer shall be taken as an affidavit of defense.”
Thus in every view of the case an affidavit of defense is an answer to the plaintiff's claim, and so important in this respect that it frames the issue to be tried between the parties.
In Martin v. B. & O. R. R. Co., 151 U. S. 673, 14 Sup. Ct. 533, 38 L. Ed. 311, Mr. Justice Gray, in delivering the opinion, says that this provision regarding the time for the presentation of a petition for removal "allows the petition for removal to be filed at or before the time when the defendant is required by the local law or rule of court 'to answer or plead to the declaration or complaint.' These words make no distinction between different kinds of answers or pleas.” And again:
“Construing the provision now in question, having regard to the natural meaning of its language, and to the history of the legislation upon this subject, the only reasonable inference is that Congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defense whatever in that court, so that, if the case should be removed, the validity of any and all of his defenses should be tried and determined in the Circuit Court of the United States."
To the same effect, also, is Wabash Western Railway v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 131. It was upon the authority of these two cases that it was determined in Muir v. Insurance Company, supra, that the petition for the removal of the case from the state court to the federal court should be filed before the defendant is required to file an affidavit of defense. The same principle is again declared in Powers v. Chesapeake & Ohio R. R. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673, where it is stated that “undoubtedly, when the case, as stated in the plaintiff's declaration, is a removable one, the defendant should. file his petition for removal at or before the time when he is required by the law or practice of the state to make any defense whatever in its courts.” According to the plain interpretation of these decisions, the application for the removal of these causes was made too late, and the petition to remand must be granted. It may be stated that these cases have all been tried in the state court and passed upon by the Supreme Court on appeal and the judgments of the lower court affirmed.
The cases are therefore remanded.
HARTON v. HOWLEY et al.
(Circuit Court, W. D. Pennsylvania. August 3, 1907.)
1. ABATEMENT AND REVIVAL-PENDENCY OF ANOTHER SUIT-FEDERAL AND
The pendency of another action between the same parties for the same cause in a state court is not a bar to an action in a federal court.
[Ed. Note.--For cases in point, see Cent. Dig. vol. 1, Abatement and Revival, $ 87.
Pendency of action in state or federal court as ground for abatement of action in the other, see notes to Bunker Hill & Sullivan M. & C. Co. v. Shoshone M. Co., 47 C. C. A. 203; Barnsdall v. Waltemeyer, 73 C. C. A.
521.] 2. COURTS-JURISDICTION OF FEDERAL COURTS-CITIZENSHIP OF PARTY.
Plaintiff had for many years been a resident of a city in Pennsylvania. Some two years before the commencement of suit he became superintendent of a company engaged in drilling oil wells, which required his presence the greater part of the time at the place where the company was at work. A year later, the most of the wells on which it was then engaged being in the vicinity of a town across the river in Ohio, 16 miles from his residence, he established his headquarters there, hiring a room in a hotel, where he stayed through the week. His family, consisting of a wife and son, remained in Pennsylvania, where his wife built a residence, and he usually spent Sundays there. He was in the directory there as a resident, paid taxes there, and voted there when he last voted. Held that, notwithstanding his testimony that he was a resident of Ohio and although he may have intended to remove to the Ohio town, he was in fact still a resident and citizen of Pennsylvania, and could not main
tain a suit in a federal court against another citizen of that state.
EWING, District Judge. In the bill filed in this case the plaintiff claims to be a citizen of the state of Ohio, and alleges the defendants are citizens of the state of Pennsylvania; and to that bill Frank P. Howley has filed a plea to the jurisdiction, stating therein that the plaintiff, as well as the defendants, is a citizen and resident of the state of Pennsylvania, and also that another action between the same parties for the same subject-matter had previously been instituted and is still pending, undetermined, in the state courts of Pennsylvania.
This second ground of objection to the jurisdiction of this court may be disposed of first. It has been repeatedly · determined that the pendency of another action between the same parties for the same cause or causes in the state courts is no bar to a similar action in the courts of the United States, as they are regarded as foreign courts for that purpose.
Upon the question of citizenship considerable testimony has been taken, which may be briefly summarized as follows: The plaintiff was born and raised in Beaver county, Pa., and while for a time prior to his marriage he resided in another state, from his marriage in 1889 up to March, 1905, it is admitted his residence was in Beaver, Beaver county, Pa. Up to about the latter date he was engaged in the building and contracting business, but then became interested in the Old Colony Oil Company and the Shawnee Oil Corporation; the former now conducting a contracting business in the line of drilling wells and the latter an oil producing company. Of both these companies the plaintiff is superintendent and manager, and the prosecution of his work for the former coinpany naturally requires him to spend most of his time where their work lies, and for the latter company he has charge of their leases, which embrace territory in western Pennsylvania, eastern Ohio, and West Virginia. Plaintiff's family consists of himself, wife, and one son, now grown and in employment. In March, 1905, he claims to have left Beaver, and resided until the spring of 1906 in the western part of that county, back of East Liverpool, in the neighborhood of Smith's Ferry, and since March, 1906, he alleges that his residence has been East Liverpool, Ohio. He says his work during that period and for some time to come has been and will be in the neighborhood of East Liverpool, within a distance of some six miles, and that that is the most convenient point for him to his business. In East Liverpool he has quarters in a lodging house known as the “Hotel Hollenden," occupying there a room on the third floor, which he uses both for his bedroom and his office. He takes his meals wherever he happens to be. That hotel furnishes no meals. During the time he has been at East Liverpool and in the neighborhood of Smith’s Ferry his family has continued to reside in the town of Beaver, where his mother also resides. In the fall of 1905, through negotiations conducted in part by himself, his wife purchased a lot in Beaver and subsequently erected thereon a dwelling house, completing it in the late summer or early fall of 1906, which she and her son have since occupied as their home. There is no disagreement or lack of harmony in the family and no separation of husband and wife. The plaintiff states that he hopes before long to be able to have his family with him in East Liverpool, and that so long ago as last fall he spoke to a real estate dealer in Beaver about trying to sell his wife's property there. He accounts for his wife and son remaining there by stating that his son is in employment there, or in that neighborhood, and that his wife stays there in order that he may live at home with her, as well as because of their ownership of that property. The plaintiff's name appears in the local directory of Beaver as a resident of that place, and he is also registered as a voter and assessed for taxation there, both for the years 1906 and 1907, and he admits he voted there in the fall of 1905, the time he was staying near Smith's Ferry. _He spends practically all of the week, except Sunday, in and about East Liverpool, and his room there is rented by the month. Sundays he generally spends with his family in Beaver. He has never exercised any of the rights nor borne any of the burdens of citizenship in East Liverpool, admitting that he has not paid any taxes there, and claiming that he has not voted there because the laws of Ohio require two years' residence. He states it is his intention to remain in East Liverpool so long as his business pays him as well as it does now, but admits his position would require him to go any place where the work of the corporations by which he is employed would demand. These corporations have their offices in Beaver, and both the plaintiff and his wife have some interest in one or both of them. The character of the work in which the plaintiff is engaged is such as to make it very uncertain as to where he will be at any particular time in the future, and the probability is that, like all others following similar vocations, he will be going about from place to place, remaining not very long and for no definite time in any one locality. East Liverpool is about 17 miles distant from Beaver, with rail communication, and the plaintiff pays $16 per month for his room at the former place.
The question for determination, then, is whether the plaintiff is a resident of Ohio or Pennsylvania, and under the pleadings in the case the burden of showing that he is not a resident of the former state rests upon the defendant. "To effect a change of citizenship from one state to another there must be an actual removal, an actual change of domicile, with a bona fide intention of abandoning the former place of residence and establishing a new one, and the acts of the party must correspond with such purpose." Kemna v. Brockhaus et al. (C. C.) 5 Fed. 762. “Domicile of origin must be presumed to continue until another sole domicile has been acquired by actual residence, coupled with the intention of abandoning the domicile of origin.” Price v. Price, 156 Pa. 617, 27 Atl. 291. Applying these principles to the case in hand, and having regard to the employment of the plaintiff, the situation of his family, and all the facts and circumstances surrounding his and their acts during the past two years, I am impressed with the conviction that his real residence and citizenship are in Pennsylvania, and that his situation is rather that of one who purposes eventually, if family circumstances will permit and his employment so dictates, to change his place of residence permanently, rather than that of one who has already done so.
The conclusion, therefore, is that the plaintiff is a citizen of Pennsylvania, of which state both the defendants are citizens, and that therefore the plea of the defendant Howley must be sustained, and the case dismissed for lack of jurisdiction.