Page:Federal Reporter, 1st Series, Volume 9.djvu/555

540 FEDEBAIi BEFOBTBB. �It appears to me, however, that in filing his bill against the ad- ministrator, to obtain an accounting, they have inistaken their rem- edy. For both these reasons the bill must be dismissed, with costs. ���BellCE V. GlESON.* {Circuit Court, S. D. OMo, W. D. November 21, 1881.) �1. RemovaIi of Oaubes— Act of 1875— Citizenship at Timb of Appr.rcATioN �FOB liEMOVAL. �Under the removal act of 1875 a case is not removable unlcss the required diverslty of citizenship exists at the tiine the application for removal is niade ; it is not sufflcient that the required diveraity in citizenship existed wlicn the suit was commenced in the state court. �2. BAME — CONSTITUTIONALITT. �And if the act authorized a removal of a cause when the required divorslty of citizenship did notexist at the time of the application for removal, it would, to that extent, be unconstitutional and void �On Motion to Eemand. �O'Connor, Glidden e Burgoyne and Lincoln, Stephens e Slattery, for motion. �Thos. McDougall and Hoadly, Johnson d Colston, contra. �Baxter, C. J. This suit was commenced in the superior court of Cincinnati, April 12, 1879. When the pleadings were concluded, and an issue reaehed in March, 1881, it was, upon defendant's peti- tion alleging that at the commencement of the suit, as well as at the time of the filing of his petition, the plaintifi was a citizen of New York and defendant a citizen of Ohio, removed into this court for trial. But the plaintiff, by plea filed here, says that at the time defendant filed his petition for the removal of the case she was a citizen of Ohio, The issue thus made was, by consent of the parties, tried by the court. From the evidence adduced we find that, at the commencement of the suit, the plaintiff was a citizen of New York, but that at the time defendant applied to have it removed, and for 17 months prier thereto, she was a citizen, with defendant, of the state of Ohio. Upon this finding the plaintiff moves to remand the case to the state court. �The controversy bas been sharply defined by the arguments of counsel. On the one side it is insisted that the right of removal depends upon the status of the parties at the commencement of the �*Reported by J. C. Harper, Esq., of the Cincinnati bar. ��� �