Knickerbocker Life Insurance v. Gorbach , 1871 Pa. LEXIS 249 ( 1871 )

The opinion of the court was delivered, November 16th 1871, by

Thompson, C. J.

The Knickerbocker Life Insurance Company, defendant in an action brought by Barbara Gorbach on an insurance taken by her on the life of her husband or standing in her name, pending in the District Court of this county, applied by petition to remove the same into the Circuit Court of the United States for the Western District of this state, under the Act of Congress of 27th July 1866, and the supplement thereto approved March 2d 1867. The petition averred citizenship of the company in the state of New York, and that the plaintiff was “ a resident and citizen” of Pennsylvania. To this petition the plaintiff made answer that she was not a citizen of the state of Pennsylvania at the commencement of said suit, but was then, and still is, a subject of the Emperor of Austria, having emigrated to the United States after she was over the age of twenty-one, and never naturalized in the United States. If she was in fact not a citizen of Pennsylvania, then her case was not subject .to removal under the Acts of Congress mentioned. The cases of removal are “ where there is a controversy between a citizen ofi the state in which the suit is brought and a citizen of another state.” Mrs. Gorbach’s answer to the petition presented a question of fact in the court below as to her citizenship, and this we have no power to review on a certiorari. If her husband had been naturalized, she would have been a citizen undoubtedly, but that was a question of fact, and whatever conclusion the court below came to as to that fact cannot be reviewed here, as the facts do not appear on the record. The matter is concluded by the action in that court. For this reason we cannot say whether the court below erred in point of law on the facts or not, and that was what was sought to be reviewed in this court. It was undoubtedly the duty of the company to make good their averment of the citizenship of Mrs. Gorbach. This they did not do, and her affidavit stands for proof that she was not a citizen until overturned by proof by tne company. In the state of the record before us we cannot say there was error on part of the court in refusing the application of defendants for the removal. The record being all right we must affirm the proceedings in the court below.

Proceedings affirmed.