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Opinion of the Court.

there was anything in the case which would have justified the court in thus taking the determination of it from the jury. The court had no right in this summing up to ignore the testimony of four or five respectable and intelligent gentlemen who knew Comstock well during the most important part of this period, during several years of it, who saw him almost daily, and who testify that they never had any reason to suppose that he used ardent spirits at all, much less to excess. It was for the jury to weigh all these circumstances, and to determine, in view of them all, whether he was habitually intemperate.

There are very few decisions by courts of high character relating to this question. The principal one which has been brought to our attention is Insurance Co. v. Foley, 105 U. S. 350, 354. In that case the insured, in answer to the question, "Is the party of temperate habits? has he always been so?" answered, "Yes," whereas the defendant company alleged that in fact he was a man of intemperate habits. The court, through Mr. Justice Field, said:

"The question was as to the habits of the insured. His occasional use of intoxicating liquors did not render him a man of intemperate habits, nor would an occasional case of excess justify the application of this character to him. An attack of delirium tremens may sometimes follow a single excessive indulgence. When we speak of the habits of a person we refer to his customary conduct, to pursue which he has acquired a tendency from frequent repetition of the same acts. It would be incorrect to say that a man has a habit of anything from a single act. The court did not, therefore, err in instructing the jury that, if the habits of the insured, 'in the usual, ordinary, and every-day routine of his life were temperate,' the representations made are not untrue,' within the meaning of the policy, although he may have an attack of delirium tremens from an exceptional over-indulgence. It could not have been contemplated, from the language used in the policy, that it should become void for an occasional excess by the insured, but only when such excess had by frequent repetitions become a habit. And the testi

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Statement of the Case.

mony of witnesses, who had been intimate with him for years, and knew his general habits, may well have satisfied the jury that, whatever excesses he may at times have committed, he was not habitually intemperate."

We think this language eminently applicable to the case before us.

The questions presented by these requests do not rise to the dignity even of mixed law and fact, but are questions the answers to which are governed by no settled principle or rule of law, established either by statute or by a recognized course of judicial decision. They are emphatically questions of fact, which it is the province of a jury to decide, and in regard to which they are or ought to be as capable of making a decision as the court or anybody else.

The judgment of the Circuit Court is, therefore, affirmed.

BURLINGTON, CEDAR RAPIDS AND NORTHERN RAILWAY COMPANY v. DUNN.

ERROR TO THE SUPREME COURT OF THE STATE OF MINNESOTA.

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When a petition for a removal of the cause to a Circuit Court of the United States is filed in a cause pending in a state court, the only question left for the state court to determine is the question of law whether, admitting the facts stated in the petition to be true, it appears on the face of the record, including the petition, the pleadings and the proceedings down to that time, that the petitioner is entitled to a removal; and if an issue of fact is made upon the petition, that issue must be tried in the Circuit Court.

THE Federal question brought up by the writ of error in this case related to the right of removal of the cause to the Circuit Court of the United States. The case is stated in the opinion of the court.

VOL. CXXII-33

Opinion of the Court.

Mr. Eppa Hunton and Mr. Jefferson Chandler for plaintiff

in error.

Mr. Enoch Totten and Mr. C. D. O'Brien for defendant in

error.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This suit was brought in the District Court of Ramsey County, Minnesota, by Charles L. Dunn, a minor, to recover damages for personal injuries which he had received while travelling as a passenger on the railroad of the Burlington, Cedar Rapids and Northern Railway Company. The company answered the complaint in the action, and then filed a petition under § 639 of the Revised Statues, verified by the oath of its president, for the removal of the suit to the Circuit Court of the United States for the District of Minnesota, on the ground of prejudice and local influence. The petition was accompanied by the necessary security. It set forth that the railway company was an Iowa corporation, and consequently, in law, a citizen of that state, and Dunn, the plaintiff, a citizen of Minnesota. Under § 639 a suit cannot be removed from a state court to a Circuit Court of the United States, except it be one between a citizen of the state in which the suit was brought and a citizen of another state, and then only by the citizen of the latter state. Immediately on the presentation of the petition for removal, the attorney for the plaintiff filed a counter affidavit to the effect that the plaintiff was not a citizen of Minnesota, but of the territory of Montana. No further proof being offered on this point, the court ruled that a case for removal had not been made out, and that the suit must be retained for trial. Accordingly a trial was afterwards had in the state court, which resulted in a judgment against the company. An appeal was then taken to the Supreme Court of the state, where the judgment of the District Court was in all respects affirmed, including the rulings on the question of removal. To reverse that judgment this writ of error was brought.

Opinion of the Court.

The assignment of errors presents but a single question, and that is whether, as after the petition for removal had been filed the record showed on its face that the state court ought to proceed no further, it was competent for that court to allow an issue of fact to be made upon the statements in the petition, and to retain the suit because on that issue the railway company had not shown by testimony that the plaintiff was actually a citizen of Minnesota.

It must be confessed that previous to the cases of Stone v. South Carolina, 117 U. S. 430, 432, and Carson v. Пyatt, 118 U. S. 279, decided at the last term, the utterances of this court, on that question, had not always been as clear and distinct as they might have been. Thus, in Gordon v. Longest, 16 Pet. 97, in speaking of removals under § 12 of the Judiciary Act of 1789, it was said, p. 103, "it must be made to appear to the satisfaction of the state court that the defendant is an alien, or a citizen of some other state than that in which the suit was brought;" and in Railway Company v. Ramsey, 22 Wall. 322, 328, that, "if upon the hearing of the petition it is sustained by the proof, the state court can proceed no further." In other cases expressions of a similar character are found, which seem to imply that the state courts were at liberty to consider the actual facts, as well as the law arising on the face of the record, after the presentation of the petition for removal. At the last term it was found that this question had become a practical one, about which there was a difference of opinion in the state courts, and to some extent in the circuit courts, and so, in deciding Stone v. South Carolina, we took occasion to say: "All issues of fact made upon the petition. for removal must be tried in the Circuit Court, but the state court is at liberty to determine for itself whether, on the face of the record, a removal has been effected. It is true, as was remarked by the Supreme Judicial Court of Massachusetts in Amy v. Manning, 144 Mass. 153, that this was not necessary to the decision in that case, but it was said on full consideration and with the view of announcing the opinion of the court on that subject. Only two weeks after that case was decided Carson v. Hyatt came up for determination, in which the

Opinion of the Court.

precise question was directly presented, as the allegation of citizenship in the petition for removal was contradicted by a statement in the answer, and it became necessary to deter mine what the fact really was. We there affirmed what had been said in Stone v. South Carolina, and decided that it was error in the state court to proceed further with the suit after the petition for removal was filed, because the Circuit Court alone had jurisdiction to try the question of fact which was involved. This rule was again recognized at this term in Carson v. Dunham, 121 U. S. 421, and is in entire harmony with all that had been previously decided, though not with all that had been said in the opinions in some of the cases. To our minds it is the true rule and calculated to produce less inconvenience than any other.

The theory on which it rests is, that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents then to the state court a pure question of law, and that is, whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court has the right to decide for itself, and if it errs in keeping the case, and the highest court of the state affirms its decision, this court has jurisdiction to correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal. Stone V. South Carolina, 117 U. S. 430, and cases there cited.

But even though the state court should refuse to stop proceedings, the petitioning party may enter a copy of the record of that court, as it stood on the filing of his petition, in the Circuit Court, and have the suit docketed there. If the Circuit Court errs in taking jurisdiction, the other side may bring the decision here for review, after final judgment or decree, if the value of the matter in dispute is sufficient in amount. Railroad Company v. Koontz, 104 U. S. 5, 15. In that case, the same as in the writ of error to the state court, the question will be decided on the face of the part of the record of the

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