cember. The petition for removal was filed October 18, 1884. 1'11e demurrer put in by the defendant to the first declaration was general, alleging that the matters therein contained were not sufficient in law to maintain the action. If a plea had been filed an issue of fact would have been formed, which would have been tried at the May term of the Hudson county circuit, but the demurrer raised an of law which could have been argued in the regular course of practice at the June term of the supreme court. Instead of this the parties agreed, in their stipulation, to withdraw the pleadings and file a new declaration and plea making an issue of fact. The question is, did the defendant, by such action, lose its right under the third section of the act of March 3,1875, to remove the cause into the federal court? The construction of the section by snpreme court in Babbitt v. Clark, 103 U. S. 606; Alley v. Nott, 111 U. 472; S. C. 4 Sup. Ct. Rep. 495; Scharff v. Levy, 5 Sup. Ct. Rep. 360; and Pullman Palace Gar Co. v. Speck, 113 U. S. 84; S. C. 5 Sup. Ct. Rep. 374, renders it manifest that the right of removal has been lost by the delays of the parties in pleading; and the cause is accordingly remanded.
WILKINSON and another v. DELAWARE, L. & W. By. Co.
(Circuit OQurt, D. New Jersey. March 2, 1885.)
HEWlVAI. OF CAUSE-HECoRD-S·rTPuLATTON-CERTIORAur.
Where by stipulation of the parties certain pleadings in the state court h1ve been taken out of the case, the circuit court will not grant a certiQ'fur, to order the clerk of the state COUI"\. to add such pleadings to the record.
Although such pleadings have heen taken out of the record by stipulation. they may be used in the United States court, when properly verified. to show what has been done in the state court, with a view to showing that the application for removal was made too late.
In NIXON, J. 'rhe above suit was bronght here by the defendant on a petition for removal from the supreme court of New Jersey. On filing the record, a motion was made by the plaintiffs to have the same remanded to the state court, on two grounds: (1) Because the defendant corporation, although chartered by the state of Pennsylvania, had become a citizen of New Jersey, as the lessee of the Morris & Essex' Railroad, and by the legislation of the state confirming the said lease; and (2) because the petition for removal was filed too late. 22 FED. REP. 353. After argument and consideration the court held that both grounds failed, and that the cause had been properly removed. Notice is now served upon the defendants of a motion (1) for leave to file in this court, as part of the record of said suit, certain copies of a declaration, demurrer, and joinder in demurrer, duly certi·
WILKINSON V. DELA.WAllE, L. &; W. BY.
fled by tbeclerk of the supreme court of New Jersey as file iu that court; (2) for this court to issue a writ of certiorari to the supreme court of New Jersey, commanding it to make return of the record in said action-and especially of the declaration, demurrer, ancl joinder in demurrer-as to which a diminution is alleged. The facts of the case are these: That suit was originally commenced in the state court, by a summons tested November 26, and returnable December 6, 1883. A declaration was filed therein December 10, 1883; a general demurrer, December 22, 1883; and a joinderin demurrer, January 18, 1884. At this stage of the proceed. ings, the respective parties entered into the following stipnlation, dated June 4, 1884, and filed June 6, 1884: "It is hereby stipulated and agreed by and between the attorneys of t.he plaintiffs and defendant in the above case (1) that the plaintiffs shall, within twenty days from the date hereof, file an amended declaration; (2) that, from the time of the filing of said amended declaration, the demurrer heretofore filed by the defendant shall be withdrawn and of no effect; (3) that the defem1· ant will plead to said amended declaration within thirty days from the date of service of the same upon its attorneys; (4) that the above shall be without prejudice or costs against either party, but each shall pay their own COSLS. "Dated June 4,1884." Under this stipulation a new declaration was filed by plaintiffs June 12, 1884, on which an issue was joined by plea on July 5, 1884. The next term of the Hudson circuit court to which the record could be regularly handed down for trial began on the first Tuesday of September following. At that term, and b:Jfore the trial of the cause, to-wit, on the eighteenth day of October, during the term, the petition for removal, and a bond executed in the form required by the statute, were filed in the state court, and the clerk sent to this court a duly certified record of the case, containing copies of the following papers: (1) The summons issued; (2) the ahove recited stipulation entered into by the parties June 6, 1884; (3) the amended declaration, filed .June 12, 1884; (4) the plea of the general issue, filed July 5.1884; (5) the similiter, tiled July 12, 1884; (6) the petition for removal and the bond accompanying- the same, filed October 18, 1884; certifying that they were a true copy of the entire proceedings in said cause as the same remained on file in his office. It will be perceived that he left out of the record the pleadings that had been filed previous to the stipulation, and which, as the defendant claims, ceased to be a part of the record by virtue of the stipulation. The counsel for the plaintiffs then applied to the clerk of the state court to amend the record by incorporating these pleadings therein, which the clerk declined to do without the order of the court. Applicati1m was then made to the state court for an order upon the clerk, and it is conceded that the judges refused to act in the matter. The clerk of the state court has, however, forwarded to the counsel for the plaintiffs copies of these pleadings, with the certificate added, dated January 26, 1885, that they are trne copies of the declaration.
(original,) demurrer, and joinder thereto, aa the same remained on file in his office. They are annexed to the moving papers on this motion, and we are asked (1) for an order to have them filed as a part of the record of the case from the state court. It is apparent from the form of the request that the counsel of the plaintiffs have taken notice of the 'change which the removal act of March 3, 1875, has made in the matter of the copies of t.he papers to be transmitted from the state to the federal court. Under previous acts the condition of the bond was that the petitioner should enter in the circuit court on the first day of the next session "copies of the process against him and of all pleadings, depositions, testimony, and other proceedings in the cause." The phraseology is changed in the later enactment, and all that is now required is that he shall enter "on the first day of its then next session a copy of the record in such suit." Whether the court should make an order as requested, de. pends upon the question whether the original declaration, demurrer, and joinder in demurrer, which have been withdrawn from the case by the stipulation of the parties, without prejudioe and without costs, are still to be regarded as a part of the record of the suit? They were abandoned and withdrawn by consent. They have no place .nor office in the pleadings whioh led up to the issue to be tried. The record of a suit has been defined to embrace the sucoessive judioial steps whioh have been taken and are necessary to show jurisdiction and regularity of procedure; the process writ or summons, with proof of servioe ; the pleadings, minutes of trial, verdiot, and judgment; and also ancillary and interlocutory proceedings, entering into and supporting the ac· Abb. Law Dict. 388. The clerk very properly made the stip. tion. ulation of the parties, whereby these pleadings were taken out of the case, a part of the reoord; and quite as properly, we think, declined to incumber the reoord with what they had agreed should form no part thereof. We must therefore refuse to enter an order to add to the record any papers which do not constitute any part of the reoord of the suit. 2. The application for a writ of certiorari to the state oourt, com· manding it to make return of the record in the cause, is under the of the aot of 1873. The section was provisions of the seventh to be resorted to in a oase where a clerk of the state oourt had refused, on a proper application, to furnish the petitioner with a copy of the record,for the reasons heretofore stated. We are not of the opinion that the olerk of the state court has been derelict in duty, and we decline to order the writ to issue. It became manifest from statements made on the argument that oounsel for plaintiffs was desirous of getting all the proceedings of thb' Rtate oourt before this court, to enable him to show that, under the recent deoisions of the supreme court, narrowing the interpretation of the act of 1875, the defendant has lost the right of removal. These cases have reoently made their appearance in the reports, and,
PACIFIO BAILROAD V. MISSOURI PAO. BY. 00.
unless we have misunderstood their purport, they will have the effect of cutting off to a large extent the future removal of causes. We refer to Alley v. Nott, 111 U. S. 472; S. C. 4 Sup. Ct. Rep. 495; Scha.rff v. Levy, 5 Sup. Ct. Rep. 360; and Pldlma.n Palace Car Co. v. Speck, 113 U. S. 84; S. C. 5 Sup. Ct. Rep. 374. Although these pleadings have been taken out of the record by the stipulation of the parties, they are, nevertheless, a part of the proceed. ings in the case, and as such may be used here, when properly verified, to prove what has been done in the state court.
PACIFIC RAILROAD V. MISSOURI
(Oil'cuit Oourt, D. Kansas.
REMOVAL OF CAUBE-CITIZENSHIP-CORPORATION, HOW A CITIZEN OF A STATE.
Strictly speaking, corporations cannot be citizens, and in order to hold them amenable to federal jurisdiction, on the ground of citizenshipl it is necessary to assume that all the stockholders are citizens of the state by wnich the corporation was created. · A corporation for juri.<dictional purposes is a citizen of the state by which it was created, even if all its business is t.ransacted elsewhere, and all of its offices and places of business are outside of the state.
SAME-'-BuSINESS AND OFFICE IN ANOTHER STATE.
SAME-CONSOLIDA1'ED CORPORATIONS--SUIT BY CORPORATION.
A consolidated corporation formed by the union of six corporations, three of which were organized under the laws of :Missouri and three under the laws of Kansas, will be presnmed to be a citizen of both states, nnd, when sued in a state court in Kansas by a corporation organized under the laws of Missouri, cannot remove the cause to the federal court.
On Motion to Remand.
James Baker, for plaintiff. Thomas J. Portis, for defendant.
MCCRARY, J. This cause having been removed from a state court, is now, by agreement of counsel, submitted as upon motion to remand, upon facts appearing in the record and by a stipulation On file, and which are as follows:
(1) The plaintiff is a corporation organized under the laws of the state of Missouri, but had, at the time this suit was commenced, and still has, its chief place of business in the city and state of New York, and has not had for more than five years any officer, office, or place of business in the state of Missouri; (2) the defendant is a consolidated corporation, formed ·by the union of six corporations, three of which were organized under the laws of Missouri, and three under the laws of Kansas; (3) the property in controversy was the property of one of the Missouri corporations, if it is owned by the defendant at all. All the interest the consolidated company has in the property is derived from one of the Missouri corporations under the articles of consolidation. The cause was removed solely upon the ground of citizen-