Rooker v. Crinkley, 113 N.C. 73 (1893)

Sept. 1893 · Supreme Court of North Carolina

113 N.C. 73

GEORGE W. ROOKER v. W. B. CRINKLEY.

Removal of Cause from State Court — Alien Resident.

A suit pending in a Court of this State between a citizen of this State and an alien resident in this State is not removable under the act of Congress relating to the removal of causes.

Motion for removal of cause to the Federal Court, heard at March Term, 1893, of Warren Superior Court, before-. Iloke, J.

“Your petitioner, the defendant, respectfully requests the Court to remove the above entitled action for trial into the Circuit Court of the United States for the Eastern District of North Carolina, which will be held in the city of Raleigh on the first Monday in June, 1893, for the following reasons:

“(1) That defendant is not a citizen of the State of North Carolina, but is an alien and is the subject of her Majesty Victoria, Queen of England.

“(2) That it appears from the complaint that the amount in dispute and claimed of the defendant by the plaintiff is more than $500, and is for the sum of $5,000.”

Affidavit of Defendant. — W. B. Crinkley, the defendant, being duly sworn, says that he is, and always has been, a citizen and subject of Victoria, Queen of England, and though he resides in North Carolina, and has resided in said State for more than ten years past, he is an alien and has never become a naturalized citizen of the United States of America, having been born in England.

The motion was denied, because the affidavit does not show that the defendant is a non-resident as well as an alien, and order was made that the cause be proceeded with in the State Court, and the defendant appealed.

Messrs. W. A. Montgomery and W. H. Day, for defendant (appellant).

No counsel, contra.

MacRab, J.:

We concur with his Honor that the affidavit and petition of defendant shows no removable cause. The act of Congress governing removals of causes from the State to the Ftderal Courts, and which is applicable to these cases, is that of March 3,1887, and embraces (1) suits arising under the Constitution and laws of the United States, and treaties made in pursuance -thereof; (2) suits in which the United States are plaintiff; (3) suits between citizens of different States; (1) suits between citizens of the same State claiming lands under grants from different States; and (5) suits between citizens of a State and foreign States, citizens and subjects.

Section 2 provides, among other things: “Any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought in any Stale Court, may he removed into the Circuit Court of the United States for the proper district by the defendant or defendants therein being non-residents of that State.” Cudahy v. McGeoch, 37 Fed. Rep., 1; Walker v. O’Neal, 38 Fed. Rep., 374. These are suits between a citizen of this State and an alien resident in this State, and are not removable under the act of Congress.

No Error.