Hardwick v. Kean , 95 Ky. 563 ( 1894 )

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT,

This is ail action instituted in Powell Circuit Court by J. R. Hardwick against Hamilton E. Kean, receiver of the Kentucky Union Railway Company, to recover (lam-ages resulting from alleged improper construction and operation of the road upon plaintiff’s land.

At the time fixed liy the Civil Code for defendant, to answer, he filed his petition for removal of the cause from Powell Circuit Court to Circuit Court of the United States for the district of Kentiiclcy', upon the ground he was and is a citizen of the State of New Jersey. And in an amended petition, filed same day, it was stated, as an additional ground for' removal, that the action is one which arises under the Constitution and laws of the United States.

The bond required in such case having been filed, the lower court made an order for removal as applied for by defendant. . Counsel urge as objection to the order that the cause for removal, stated in the original petition, was not proved, and that, it was error to permit tlie amended petition to be tiled at all. The fact relied on was stated in the petition, verified by defendant’s attorney as authorized by section 117, Civil Code, to be done in case the party be absent from the county.

The statute of the United States on that subject does not, in terms, require any other or further proof of a fact stated as a cause for removal of an action from a State court to Circuit Court of the United States than affidavit of the party applying, or his attorney. In this ease, however, no question can arise about sufficiency of the proof, because the statement of the essential fact, in the petition for removal not being controverted, was properly accepted by the court, as true.

We do not see. why defendant could not file liis amended petition, as .was done, before plaintiff had interposed any other pleading or taken any other steps in the case than to simply file his petition. And as it would have, anyhow, been in discretion of the court to permit the amended pleading filed at the'time it was done, it was not error to treat it as properly filed.

It appears from the record that defendant was appointed receiver by judgment of the Circuit Court of the United States, and, therefore, as held by the Supreme Court, such action against him as this is in meaning of section 2, article 3, Constitution of United States, a suit “arising Tinder the Constitution and laws of the United States,” and subject, to removal from a State court to Circuit Court of the United States. (Buck v. Colbath, 3 Wall., 334; Feibelman v. Packard, 109 U. S., 421; Rock v. Perkins, 139 U. S., 628; Texas & Pacific R. Co. v. Cox, 145 U. S., 593.)

Ill our opinion, without deciding whether sufficient cause for removal was stated in original petition, there was, according to the cases cited, unquestionably sufficient cause in the amended petition, and the lower court had no other alternative but to transfer the case.

Judgment affirmed.