WACO HARDWARE CO. V. MICHIGAN STOVE CO.

291

viz. when the suit is one 'between citizens of the same state claiming lands under grants of different states.' [But] in all other cases the new act, by declaring that the removal may be made by the 'defendant or defendants' therein, has excluded the plaintiff from the exercise of this privilege. When he has chosen to begin his proceedings in a state court, he must abide by his election, and cannot transfer the cause to another forum. Although an element of removability Is present in the cause, It cannot be transferred unless the defendant asks for it."

Defendant in error's contention has been considered adversely in the case of West v. City of Aurora, 6 Wall. 141. There the court was engaged in considering the right of a plaintiff to remove under the judiciary act of 1789, which, like Act 1887-88, limits the right to the defendant. It appears in that case suit was brought by West & Torrance against the city of Aurora, and that the defendant, having set up some defenses in its answer, was allowed, on its own application, to file three paragraphs setting up defensive matter, in each of which defendant prayed for an injunction to restrain the plaintiffs from proceeding further in any suit on the coupons or bonds, or from transferring them to any third party, and for a decree that the bonds be delivered up to be canceled. Upon the filing of these additional paragraphs, the plaintiffs entered a discontinuance to their suit, and, assuming that, under the Code, the new paragraphs in the answer would remain in substance a new suit against them, filed their petition for the removal of the cause. The petition for removal was allowed by the state court, and the new paragraphs, setting up the defendant's cause of action in the state court, were sent into the circuit court. The record shows that the plaintiffs in the state court had discontinued their suit against the defendant. The circuit court, on that state of case, though admitting, it seems, that under the state practice of Indiana the defendant's cause of action set out in the three additional paragraphs remained, notwith· standing the discontinuance on the part of plaintiff, a proceeding that may go on to trial and judgment, remanded the cause to the state court. The question then coming before the supreme court was whether or not the plaintiff originally in the state court could, on the state of case made therein by the reconventional plea set up by the defendant, reo move its cause to the federal court. The chief justice, delivering the opinion of the court, said:
"·We think that the circuit court was clearly right in Its action. The filing of the additional paragraphs did not make a new suit, within the meaning of the judiciary act. They were In the nature of defensive pleas, coupled with a prayer for injunction and general relief. .This, If allowed by the Code of Indiana, might give them In some sense the character of an original suit, but not such as could be removed from the jurisdiction of the state court. The right of removal Is given only to a defendant who has not submitted himself to that jurisdiction, not to an original plaintiff In a state court, who, by resorting to that jurisdiction, has become liable nnder the state laws to a cross action. And It is given only to a defendant who promptly 'avails himself of the right at the time of appearance by declining to plead and filing his petition for removal.' In the case before us West & Torrance, citizens of Ohio, voluntarily resorted as plaintiffs to the state court of Indiana. They were bound to know of what rights the defendant to their suit might avail itself under the Code. Submitting themselves to the jurisdiction, they submitted themselves to It in its whole extent. The filing of the new paragraphs, therefore, could not make them defendants of a suit removable on their applicati.\Yll to the circuit court of the United States."

292

91'FJIlDERA.J, REPORTER.

'Li'loJ.!!'thelrreasotts stated,We jUdgment shouldhe reversed, and cause to' theeircuit court to remand the suit to the.state cour,!; and It IS so ordered.
jl

FT. WAYNE ELECTRIC CORP. v. FRANKLIN ELECTRIC LIGHT 00. et al.

(Circlilt Court,D. New' Jersey. January 16, 1899.)
,A1'rEARANCE-WAIVER OF PRQC;El\S......REMOVAL OF CAVSE.

,

, A suit Is only removable lifter It has been regularly commenced by serVice of process on the defendant; and, by appearing In the state court and filing a petition for remova1, a defendant waIves any objection to the sufflclency of the servIce upon hIm, notwIthstanding; tlie' fact that hIs was stated to be sPecial, for the purpose of the .removal only.

Motion to Set Aside the Service of Process. N. McCarter for the motion. Panco,ast, opposed. District Judge. This suit was brought in the SllPreme court of the state of New-Jersey. The service of the original writ to bring defendant in court.was admittedly insufficient. Subsequ,eiltlJ: a qualifie(iappearance was eJ,ltered on behalf of the said defendthe sole purpose of removingthe cause to this court. The mo· now is to set aside the seryiceof, ,the original process because de· The only,question to be by the court is whether, by its q'llalifiedappearance in court, and the,removal of the to.this circuit court, the defendant has waived the defective servo ice.' ' . The 12th section of the judiciary act (1 Stat. 79) provides that:
"If a suit be cOillwenced In any sta.te court - - -and the defendant shall at the tIme of enterIng his appearance In such state court file a petition fOr the removal of the cause for trIal Into the next circuIt court - · - It shall be the duty of the state court - - - to proceed no further In the cause -, - - and the cause shall then proceed In the same manDer as If !thad llee». brought by orIginal process."
, . I., \ .'

The object of the act was to confer a privilege upon defendants; to enable suits against thetn prosecuted before a new tri' bunal,T-one of their own to have the cause proceed therein as if it had been brought by original process. The purpose of tbepetitionwas to put the case in the federal court for trial a,nd ,Its filing was the voluntary act of the defendant, a w4ich the statute accords to defendants in legally pending suits only. If no suit were pending, then there was not a suit properly removable. In the character of suits which may be remoyell from stll.te'to federalcQurts. under the act of congress, the supreme court of. the United States, in the case of West v. Aurora City, 6 Walt 139, use this language: "A suit remotable from a state court must be a suit regUlarly commenced * * * 'by process served upon the defendant;" and the principle so laid down is quoted with apv. Kennedy, 9 Wall. 387. In Schwab v. Mabley, 47 Mich. 512, 11 N. W. 294, where the question arose incidentally, Judge