'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.
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
HiMAN, POULSEN & CO.
Cooley said that the granting of the prayer of the petition for removal subjected the defendant to the jurisdiction of the federal court; and Mr. Justice Jackson, in Construction Co. v. Simon, 53 Fed. 1, held that "the right of removal involves the assumption that there is a valid and subsisting suit pending in the state court against the removing party." Tbe effect of the defendant's petition was to bring the cause into the federal court for trial, and "b;y bringing it here he voluntarily treats it as properly commenced and actually pending in the state court, and ,he cannot, after it has been entered here, treat it otherwise." Sayles v. Insurance Co., Fed. Cas. No. 12,421. "A defendant who removes a cause to the federal courts will not there be heard to say that he was not properly brought before the state court when such removal was effected." Construction Co. v. Simon, supra. The question presented to the court here in this case was directly in issue in the case of Caskey v. Chenoweth, 23 U. S. App. 384, 10 C. C. A. 605, and 62 Fed. 712, and determined in the circuit court of appeals for the Fifth circuit. His honor, Judge Pardee, in delivering the unanimous opinion of the court, laid down the rule that "a defendant, by appearing in a state court and filing a petition for the removal of the cause to a federal court, waives any objection to the sufficiency of the service upon him of the summons, notwithstanding the fact that the appearance is stated to be specially for the purpose of removal." It is true, as suggested by counsel, that the defendant also filed a plea or answer in the cause after removal; but that fact does not to have entered into the consideration of the court in laying down with unqualified approval the above-stated principle. My attention has not been directed to, DOl' do I find; any decision of any circuit court of appeals upon the question raised, other than those quoted above; and, while it has been said that a different practice has heretofore prevailed in this circuit, I find by an examination of the case referred to that no reasons were given by the court for the decree entered therein, and that it may well be that the mind of the court was influenced by other considerations than those now urged. The rule will be discharged, and an order may be entered requiring the defendant to plead within five days after service OD it of a copy of the order.
BERGMAN v. POULSEN & CO.
(Circuit Court, D. Oregon.
December 24, 1898.)
JURISDICTION OF FEDERAL COURTS-AMOUNT IN CONTROVERSy-ASSIGNEE 01' CLAIMS.
An assignee of choses in action aggregating over $2,000 may maintain a suit thereon if his assignees were citizens of different states from the defendant, though they could not have maintained separate suits, because none of the claims singly was sufficient in amount.
Where a suit is upon a demand on which the law lIquidates the damages, the amount so liqUidated, and not the amount claimed in the complaint, constitutes the matter in dispute; hence in a suit for conversion of property on which plaintiff claimed liens, where the several liens are specifically set out, and they aggregate less than $2,000, without interest,