Bosler v. Booge , 54 Iowa 251 ( 1880 )

Adams, Oh. J.

l. jubisdicmovai of" eral statute, The statute provides for a removal “ in any suit of a civil nature in which there shall be a controversy,” etc. It was held in Stanbrough v. Griffin, 52 Iowa, 112, that it must appear that there is a controversy m the suit.. Where no answer or other pleading is filed showing a defense, and especially where, in the absence of any answer or other pleading, the petition for a removal does not show that there is a defense, we are unable to see how it can be properly said that there is a controversy in the suit.

The appellant claims that the petition is sufficient in form, and that this must be deemed sufficient under ■ the ruling of the Supreme Court of the United States in The Delaware Railroad Construction Company v. The Davenport & St. Paul R. R. Co., not yet reported.

In our opinion this case does hot sustain the appellant. On the other hand, the court say: “ We fully recognize the prin7 ciple heretofore asserted in many cases, that the state court is not required to let go its jurisdiction until a case is made, which, upon its face, shows that the petitioner can remove as a matter of right.”

The appellee in the case at bar contends that a case is not máde, which, upon its face, shows that the petitioner can remove as a matter of right, because it does not appear that there is a controversy in ' the suit. In our opinion the position is well taken.

Affirmed.