JONES V. ADAMS EXPRESS CO.

(Circuit Court, E. D. Kentucky. February 27, 1904.)

No. 429.

1. REMOVAL OF CAUSES-SUFFICIENCY OF PETITION-ALLEGING DIVERSITY OF CITIZENSHIP.

The fact that there are a large number of parties plaintiff or defendant does not take a case out of the well-settled rule that, in order to show the jurisdiction of the federal court on removal the petition therefor must allege the citizenship of each party. It is not sufficient to allege a diversity of citizenship in general terms.

On Motion to Set Aside Order Overruling Motion to Remand to State Court.

Morton, Webb & Wilson, for plaintiff.
Breckinridge & Shelby, for defendant.

COCHRAN, District Judge. It is well settled that a party bringing a suit in a federal court or seeking to remove one brought in a state court thereto must show affirmatively in his petition or bill in the one case and in his petition for removal in the other case that the federal court has jurisdiction thereof by alleging the facts essential to give it jurisdiction. If he does not show this, his petition or bill in the one case will be dismissed, or the cause in the other case will be remanded to the state court, and that by the court upon its own motion upon becoming aware of the failure to show jurisdiction. It is also well settled that if the ground of federal jurisdiction relied on is that of diversity of citizenship, the party suing or removing must allege not simply that the parties are citizens of different states, but the states of which they are citizens. In the case of Cameron v. Hodges, 127 U. S. 325, 8 Sup. Ct. 1155, 32 L. Ed. 132, Mr. Justice Miller said:

"This court has always been particular in requiring a distinct statement of the citizenship of the parties and of the particular state in which it is claimed, in order to sustain the jurisdiction."

In the case of Benjamin v. City of New Orleans, 74 Fed. 417, 20 C. C. A. 591, it was held that a bill filed in the United States Circuit Court of Louisiana by the assignee of certain claims against the city of New Orleans, which alleged that each of the assignors of said claims were "citizens, respectively, of states other than the state of Louisiana," was properly dismissed because it did not set forth the states of which said assignors were citizens. Judge Speer said:

"The defendant is entitled to actual and definite notice in the plaintiff's pleading of the citizenship or alleged citizenship of each assignor. No fact in the pleading of the plaintiff in these courts can be more material, for the authority of the court to act depends upon it. It was not sufficient, then, to say that the assignors were 'citizens, respectively, of states other than Louisiana,

¶ 1. Averments of citizenship to show jurisdiction in federal courts, see note to Ship v. Williams, 10 C. C. A. 261.

See Removal of Causes, vol. 42, Cent. Dig. §§ 170, 172, 173.

and competent, as such citizens, to maintain suit in this court.' Jurisdiction cannot be inferentially averred."

The general allegation of diversity of citizenship is not sufficient to give the federal court jurisdiction, in the absence of a motion to make it more specific. It is simply sufficient to permit an amendment making it more specific. This was all that was decided in the case of Stadlemann v. White Line T. Co. (C. C.) 92 Fed. 209. If an amendment had not been offered in that case, making the petition for removal specific by alleging the particular state of which the plaintiff in the action was a citizen, the motion to remand would have been sustained. So far there can be no question as to the correctness of the positions taken.

The question which this case presents is whether the numerousness of the parties plaintiff or defendant makes any difference. It is alleged in the petition for removal that the petitioner and defendants in the action are more than 3,000 in number. The plaintiff had a right to sue them all. Under the decision in the case of Adams Express Co. v. Schofield (Ky.) 64 S. W. 903, 23 Ky. Law Rep. 1120, he had a right to sue them under the name of Adams Express Company, and the cause was not removable unless all of them were citizens of states other than Kentucky. The defendants claim that to compel them to set out the states of which each of them are citizens will be a hardship on them, and a practical denial of the right to come into the federal court. Is the fact of the numerousness of the petitioners and the hardship that it will be upon them to require them to make their petition for removal more specific sufficient reason for this court taking jurisdiction of this cause, nothing else appearing than what is alleged in the petition for removal? Two reasons occur to me why, in a case of this kind, it is not sufficient reason. It will simply postpone the hardship to a later stage of the proceeding. It will certainly be imposed upon them by a denial of the general allegation as to the citizenship of the petitioners. The other is that it takes from the petitioners the burden of showing that this court had jurisdiction, and imposes on defendant to the removal the burden of showing that it has not jurisdiction, thereof. Certain advantages accrue to defendants by so many of them being able to do business together without incorporation. If it were not so, they would not transact business in this way. Certain disadvantages grow out of it also. They should take the disadvantages with the advantagesthe bitter with the sweet. I think the fair inference from the decisions in the cases of Chapman v. Barney, 129 U. S. 677, 9 Sup. Ct. 426, 32 L. Ed. Soo, Great So. F. P. H. Co. v. Jones, 177 U. S. 449, 20 Sup. Ct. 690, 44 L. Ed. 482, is that the numerousness of parties plaintiff or defendant is not sufficient to take a case out of the well-settled rules heretofore stated.

I think, therefore, that I erred in overruling the motion to remand. The order overruling it will therefore be set aside. The petitioners may file an amendment setting forth the states of which each of them is a citizen, if they so desire; otherwise the motion to remand will be sustained.

In re EVERLETH.

(District Court, D. Vermont. April 19, 1904.)

1. BANKRUPTCY-EXEMPTIONS-WEARING APPAREL.

Neither a watch and chain, nor a sword and belt, constituting a part of Masonic regalia, are exempt to a bankrupt as wearing apparel under the Vermont statute; nor are the watch and chain exempt as a timepiece, constituting a part of the tools of his trade as a barber, where among such tools there was also a clock; but a hat, although also a part of his regalia, is exempt.

In Bankruptcy.

Anthony F. Schwenk, for bankrupt.
Clarke C. Fitts, for trustee.

WHEELER, District Judge. The bankrupt appears to have been a barber, and to have had the tools and implements proper and necessary for a barber's shop, including a clock; and he also had a watch and chain, worth $20, and Masonic regalia, consisting of a hat, belt, and sword, of the value of $35, which he claims to be exempt. The clock has been turned over by the bankrupt to the trustee. The questions remaining are as to the watch and chain and the regalia. The watch and chain are claimed to be exempt as constituting a timepiece, but they do not seem to be as necessary for that purpose as the clock; and a watch and watch chain have usually been understood to be attachable, and not exempt, under the laws of this state. They are not in any sense any part of the barber's outfit, nor of the wearing apparel, which is exempt by name in the state statutes. Such a question as to articles similar to the Masonic regalia was before the Supreme Court of the state in Sawyer v. Sawyer, 28 Vt. 249. The articles there were a sword, sword belt, and epaulets of the intestate, worn by him when in uniform as a purser in the United States Navy; and a watch, ornamental key, and chain, a finger ring, and a breastpin worn by him usually, in his lifetime. It was held by a majority of the court that the sword and belt, watch and chain, and finger ring were not a part of the wearing apparel, and did not pass as such to the widow, but remained a part of the estate, and that the epaulets, with the coat on which they were, should go as wearing apparel to the widow. That question as to the meaning of the words "wearing apparel," on decreeing distribution between the widow, the heirs, and creditors, was very similar to the one here as to the meaning of the same words in setting out property between the bankrupt and creditors.

That decision has never, so far as has been pointed out or noticed, been overruled in any respect. As applicable here, it disposes of all questions except as to the hat. This hat is understood to be such a one as, when worn, would answer all the purposes of a hat, and would be, of itself, wearing apparel. It may be used only for the purposes of the order to which the bankrupt belonged; but, when so used, it would be for a covering or protection of the head from

11. See Bankruptcy, vol. 6, Cent. Dig. § 659.

the weather, as hats ordinarily are that constitute a part of the wearing apparel, and it might be so used at any time. It is like the coat, on which the epaulets were worn, in Sawyer v. Sawyer, about which no question appears to have been made but that it was wearing apparel.

The decision of the referee is therefore modified as to the hat, and, as so modified, affirmed. The denial of the right to the watch as a timepiece so varies the circumstances as to the clock delivered up that the trustee may properly enough now set out the clock, if the bankrupt so desires, with the hat, as exempt.

Decision of referee modified as to the hat, and then affirmed, with leave to allow the clock to be set out as exempt, with the hat.

In re MCCRACKEN & MCLEOD.

(District Court, W. D. Tennessee. May 3, 1904.)

1. BANKRUPTCY-PETITIONS-NECESSITY-CONSOLIDATION-RES JUDICATA. The consolidation of bankruptcy petitions filed by different creditors under order of court before the adjudication of bankruptcy, and before reference to the referee, was res judicata of the question of the necessity for the filing of the second petition, and precluded the referee from thereafter reviewing the question and holding that such second petition was

unnecessary.

2. SAME-ATTORNEY'S FEES-DIVISION.

Where two bankruptcy proceedings were filed by attorneys representing different creditors, and were consolidated by order of court, as authorized by general bankruptcy order No. 7 (89 Fed. v, 32 C. C. A. xi), a single attorney's fee should be divided between such attorneys according to the relative value of the services and amount of work done by each.

Petition to Review.

Jas. R. Duffin and R. W. Maddox, for petition.
Hawkins, Peeler & Hawkins, opposed.

HAMMOND, J. The one attorney's fee allowed the petitioning creditors by section 64b (3) of the bankruptcy statute of 1898 (Act July 1, 1898, c. 541, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3448]), should be equitably divided between the attorneys representing two petitions filed and consolidated by order of the court under general order 7 of the Supreme Court Orders in bankruptcy (89 Fed. v, 32 C. C. A. xi). The referee decided that the attorneys filing the second petition were not entitled to share in the fee, because that petition was unnecessary-giving the whole of it to the attorneys filing the first petition in point of time-and this petition was filed to review that finding. The consolidation by order of the court before the adjudication and before the reference to him precluded that question before the referee, and he was not authorized, after such an order of consolidation, to determine that the petition was unnecessary. It was already res judicata, and he should have confined his action to determining the amount of the fee, and, if the attorneys could not agree about its division, to allow to each a share according to the relative

value of the services and amount of work done by each in behalf of the creditors, having care to adhere to the statute by not allowing more than one fee, however numerous the attorneys.

The finding will be vacated, and the case returned to the referee, with directions to proceed according to law. Ordered accordingly.

In re GORDON SUPPLY & MFG. CO.

(District Court, M. D. Pennsylvania. April 9, 1904.)

No. 411.

1. BANKRUPTCY-TRUSTEES-SELECTION.

Where a trustee chosen to administer the assets of a bankrupt corpo ration by a majority of the creditors was not only a stockholder in the corporation, but had been closely associated as attorney for those who had previously been in control, and whose management was not only the subject of criticism, but might call for action on the part of the trustee to hold them personally responsible, such trustee, though unobjectionable personally, should not be permitted to act over the objections of a minority.

In Bankruptcy. On exceptions to action of referee approving of trustee selected by majority of the creditors.

C. P. O'Malley, for objectors.

W. H. Jessup and Charles H. Welles, opposed.

ARCHBALD, District Judge. There can be no objection personally to the trustee who has been chosen by a majority of those interested in the estate, at the creditors' meeting; and the right of such majority, under ordinary circumstances, to control the matter, must be conceded. The trustee is the representative of creditors, and they are the ones to decide who he shall be, subject only to the right of the court to supervise the choice where it is objected to. In the present instance the trustee chosen is not only a stockholder in the bankrupt corporation against which the proceedings were instituted, but he has been admittedly associated closely, as attorney and legal adviser, with those who have been hitherto in control; and their management is not only the subject of criticism, but may call for action on the part of the trustee to hold them personally responsible. To approve of the trustee now selected comes too near, therefore, to a continuation of previous conditions, to be warranted. With so many others who would be fully as efficient and entirely acceptable, the majority have no right to impose their present choice on the objecting minority.

The election is therefore set aside, and a new election ordered.

1. See Bankruptcy, vol. 6, Cent. Dig. § 185.