Starke v. Hoerning , 206 F. 1006 ( 1913 )

TUTTLE, District Judge.

Plaintiff began this suit in the state court by attachment. The affidavit therefor alleges an indebtedness of $2,555.80. The writ of attachment claimed damages not exceeding S3,000. The declaration was on the common counts only. The ad damnum was in the sum of $5,000. At the time the defendant filed his petition for removal of the cause to this court, there had been no personal service of process or other paper upon defendant. The defendant had not appeared generally, llis default had not been entered. The plaintiff has made a motion to remand the case to the state court, contending that the amount in controversy does not exceed $3,000.

It is the contention of the defendant that, for the purpose of determining the amount in controversy, the court is bound by the amount claimed in plaintiff’s declaration. The court is of the opinion that the question of jurisdiction must be determined upon the present status of the case. At the present time judgment could not be rendered, for want of an appearance and plea, in a sum exceeding that sworn to in the affidavit, viz., $2,555.80. Rose v. Palmer, 74 Mich. 332, 41 N. W. 1080. That sum is not sufficient to give this court jurisdiction on removal proceedings.

This court is also of the opinion that no larger sum can be recovered in a suit than the amount claimed in the writ. In this case the writ claims damages not exceeding $3,000, while the statute provides that, in order to give this court jurisdiction, the amount involved must be more than $3,000.

For the reasons already assigned, the petition to remand must be granted.