895' Fed. Rep; 8. In this caee'it,does nOt appear for what purpose the legal titlewascausEidto vestitl. Mr.Banigan,bnt it, does appear that the real ownership is jointly in him and another person, who, for aU that appears in the record, may be a citizen of Massachusetts. This case, therefore, should be remanded; and in the other cases the motions to remand wUl be' denied, and the demurrers will be overruled.
JOHNSTON '/I; DONVAN
(Oircuit Oourt; B. D. NetIJ York. March 18, 1887.)
RBvOVAL 011' CAUSES-REMAJlD-SECOND REMOVAL-SAME GROUNDS.
When a cause has been removed from a state court to the United States circuit court, and remanded on motion, because the petition for remova.ldoes not set'l1p the diverse citizenship of the partiesl\t the c,ommencement of the sutt as weHas at the time of removal, a second removal:On the same grounds is not allowable. The decision on the motion to remand is conclusive, except upon appeal. . . Upon' granting. a motion to' remand a cause to the state court, nO is necessary for the purpose ot an appeal other than that proVided for by'Rev. St. U. S. § 1001.
In Equity. Walter C. Gilson, for plaintiff. Gwrge O. Holt, for defendants.
WHEELER, J. This cause was removed from. the; state court to this court, on the ground that the parties were citizens of different states, by the defendants. On motion of the plaintiff it was remanded becallse the petition did not setforlh the diverse citizenship of the parties at the commencement of the suit as well as at the time of removal. The defendantshave now removed the cause again on the same ground. The plti.inti1l' has moved to remand again, because, as he claims, a second removal on the same grounds is not allowable. The defendants insist that the former petition was so defective that. it did not really effect a. removal, and that, therefore, this is the only removal, and not a second removal. The former petition did, however, bring the cause into this court,and within its jurisdiction, so that a motion to remand was necessary. If the former motion to remand had not been made, this court would have properly retained the case. Davie8 v. Lathrop, 13 Fed. Rep. 565; Edwarda v. Omnecticut Mm. Life Ins. OJ" 20 Fed. Rep. 452. The fonner motion to remand was therefore properly before this court, and its decision upon it was conclusive, exqapt upon apIleal. The defendants'right of removal was involved upon such proceedings as the defendants chose to take that brought it in question. That right was adjudica.tedand settled,and could not again be.brought in question upon-new: prooeedings. Railway Co. v. McLean, 108 U.S. 212, 2 Sup.
Ct. Rep. 498,. As thedefendant8had no right to try that right over again,this second removal waS ,improper, and this motion to remand must be granted. . The defendants ask a stay of proceedings for 20 days to enable them to take an appeal if this motion is granted. No stay is thought to be necessary, however, for that purpose, other than that provided for by section 1007, Rev. St. U. S. Motion granted.
PREI,PS ,tJ. ELLIOTT.
(Circuit (Jourt, 8. D. Net/} j'"ork.
March 16, 1887.>
)D'.tOJldflP.t :answer.ed. the $ftel'illo ;J;l&Jjled
Slle w.as joined by plication. There,b!V, but. not served .with'.process, became
when the dismissal as to his co-defendant had position. in WJ!.iep b:I1,.ll.t. 99R ..t . of.. . andl1nyquestion which coUld be ,raIsed.by mIght be 1ina1 hearmg. ,
In Equity. I Herbert B. Tit'U8, for plaintiff. William G. Ohoate, for defendant.
WHEELER, J. The defendant has answered the biil, and issue has belm joined Since the joinder of isStiij, one Kieckhoefer, named in the bill, but not served with process, became a. Pl1l'ty defend. ant, and demWTed to the bill. His demurrer was sustained on a stat. ute of limi14tioils,' and the bill dismiSsed as to him. 29 Fed. Rep. 53. On settlement of the order it was claitned that the bill, on the adjudication of insufficiency as to Kieckboefer, should he dismissed as to all, which was ,The defendant then moved for leave to amend his answer, which was denied. He now moves for leave to withdraw his answer and demur. This motion is urged principally upon the ground that a new case ,has been made by what Kieckhoefer .has done in it. The case does' ndll, however, appear ·to stand differently Udw from the manner in which it stood when the defendant answered the bill. Kieckhoefer was. not a party then, and is not now. If he was a necessary party wheri. he became one, has been since, he was when the defendant answered; lind his absence. as a grouIid Qf demurrexwas the same then as now.:That Kieckhoefer'sdemurrer was sustained does not show that one by the 'defendant be, for the suit was commenced against the defendanto.bout two years befoteKieckhoefer became a party toit. If themotioriTshould be granted; and the demurrer be overruled; the defendant ivdtild then,' by equity rule 34, be entitled td answer the bHl again, Thus inditectly he would obtain that which the court .has