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tinued to the next September term then to be tried, and that the depositions taken in the Circuit Court might be read as if taken in the state court. An amended petition and an amended and supplemental answer were filed. Trial was had as agreed in the District Court of Lancaster County, which made a finding of facts, and rendered judgment against the Missouri Pacific company.

The forty-seventh finding of fact was as follows: "(47) That about fifteen miles of railroad was laid out over government land; that no maps were filed with the Secretary of the Interior showing the lines of way over said government land in the State of Kansas, but maps were filed with the local land officers of the United States at Wa Keeney, Kansas, duly certified to, showing said right of way."

Both parties appealed to the Supreme Court of the State, and that court rendered a judgment against the Missouri Pacific company. 41 Nebraska, 374. The Missouri Pacific company made application for a rehearing, pending which Fitzgerald died, and Mary Fitzgerald, as his administratrix, filed her petition for revivor and for a receiver of the Construction company to collect the judgment. In support of the application for a receiver, it was alleged that about the time Fitzgerald recovered judgment, the Missouri Pacific company caused a suit to be brought against the Construction company in the name of the Kansas and Colorado Pacific Railway Company, which was owned by the Missouri Pacific company, and it was charged on various grounds that the action was collusive and contrived to deprive the Supreme Court of the State of its jurisdiction, and Fitzgerald of the fruits of its judgment, and that a receiver had been procured to be appointed by the Circuit Court in that action in furtherance of that object.

The Missouri Pacific company filed an answer and plea to this petition, denying collusion and urging objections to the application for a receiver in this case, which, so far as necessary, are hereafter stated. A reply was filed by Mrs. Fitzgerald to this answer and plea. The Supreme Court, having granted a rehearing, entered an order of revivor, rendered judgment

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against the Missouri Pacific company, and appointed a receiver. 62 N. W. Rep. 899. The pending writ of error was then sued out, and a motion to dismiss the writ for want of jurisdiction or to affirm the judgment was made.

The following are the errors assigned:

"1. The court erred in taking or assuming any jurisdiction and in holding that it had any jurisdiction of this cause forasmuch as it appeared by the record that the defendant, the Missouri Pacific Railway Company, duly and seasonably and as within the time provided by the act of Congress, filed and presented its petition and bond for removal of said cause to the United States Circuit Court for the proper district, to wit, the United States Circuit Court for the District of Nebraska, on the ground that in said suit there was a controversy wholly between citizens of different States, removable under said act to said United States Circuit Court for the District of Nebraska, which said bond was refused, and which said petition was denied, the defendant at the time duly excepting to such refusal and denial.

"2. The said court erred in taking or assuming any jurisdiction and in holding that it had any jurisdiction of this cause, forasmuch as in and by its said petition for removal of this cause to the United States Circuit Court for the District of Nebraska, the said Missouri Pacific Railway Company set up and claimed a right, claim, privilege, immunity and authority under an act of Congress approved March 3, 1875, entitled 'An act granting the railroads the right of way through public lands of the United States,' and by reason of said act of Congress claimed that said cause arose under the laws of the United States, which said claim and petition of said defendant were erroneously overruled by said District Court of Lancaster County, Nebraska, and by said Supreme. Court of Nebraska.

"3. The said Supreme Court of the State of Nebraska erred in taking or assuming jurisdiction or in holding that it had jurisdiction of this cause, forasmuch as it appeared by the record in said cause that the defendant, the Missouri Pacific Railway Company, was, at the time when said cause was com

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menced, a citizen, resident, and inhabitant, of the State of Missouri, within the meaning of the acts of Congress of the United States relating to the jurisdiction of the Federal courts, and the plaintiff, John Fitzgerald, was a citizen, resident, and inhabitant, of the State of Nebraska, but his said action was to enforce a cause of action as a stockholder of and for the benefit of the defendant, the Fitzgerald and Mallory Construction Company, which was at said time a citizen, resident, and inhabitant, of the State of Iowa, within the meaning of said acts of Congress, and the controversy was therefore a controversy between citizens of different States within the meaning of the said acts of Congress relating to removal of causes. It further appeared from the record that the matter in dispute in said cause exceeded, exclusive of interest and costs, the sum or value of $2000.00. It further appeared from the record that the defendant, the Missouri Pacific Railway Company, upon the grounds aforesaid, including the ground of such diversity of citizenship and jurisdictional amount, duly and seasonably made and filed its petition in this cause in said court, to wit, the District Court of Lancaster County, Nebraska, at the time, or at a time before the said defendant was required by the laws of said State of Nebraska or by the rule of said state court in which such suit was brought, to answer or plead to the declaration or complaint or petition of the plaintiff, for the removal of such suit into the said Circuit Court of the United States to be held in the district where such suit was pending, to wit, the Circuit Court of the United States in and for the District of Nebraska, and said defendant made and filed therewith, to wit, with its said petition, a bond with good and sufficient surety for its entering in such Circuit Court on the first day of its then next session a copy of the record in said suit and for paying all costs that might be awarded by the said Circuit Court if said Circuit Court should hold that such suit was wrongfully and improperly removed thereto, which said petition was erroneously denied and which said bond was erroneously refused by said state court, to which denial and refusal the said Missouri Pacific Railway Company then and there duly excepted.

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"4. The said Supreme Court of the State of Nebraska erred in taking or assuming or in undertaking to exercise jurisdiction of this cause and of the parties thereto by reason of the proceedings for the removal thereof herein before recited, and in denying the right and authority so set up and undertaken to be exercised by the said defendant, the Missouri Pacific Railway Company, under the statute and laws of the United States relating to the removal of causes of civil nature from the state to the Federal courts.

"5. The said Supreme Court of the State of Nebraska erred in taking or assuming to exercise jurisdiction in this cause and to hear and determine the same and to pronounce final judgment therein forasmuch as it was made to appear to said court, and did appear, by the record in this cause, that the Circuit Court of the United States, in and for the District of Nebraska, had duly taken and undertaken to exercise jurisdiction of said cause and of the parties thereto and had by due judgment and order overruled and denied application of the plaintiff herein to remand said cause to said state court, to wit, the District Court of Lancaster County, Nebraska, and had by due order and judgment overruled a plea in abatement interposed by the said plaintiff to the jurisdiction of the said Federal court, all of which orders and judgments of said Federal court then remained in full force and effect, unappealed from and unreversed.

"6. The Supreme Court of the State of Nebraska erred in denying and overruling the plea in abatement to its jurisdiction interposed by the said defendant, the Missouri Pacific Railway Company, in answer and reply to the petition of Mary Fitzgerald, administratrix, to revive this action and cause in her name, as the successor of John Fitzgerald, the original plaintiff, then deceased.

"7. The said Supreme Court of the State of Nebraska erred in denying the claim set up and claimed by the said defendant, the Missouri Pacific Railway Company, to immunity from any recovery for or in respect of seventeen miles of railroad constructed over the public domain by the said Fitzgerald and Mallory Construction Company in the name of the Denver,

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Memphis and Atlantic Railway Company, without compliance with an act of Congress of the United States, approved March 3, 1875, entitled 'An act granting to railroads the right of way through lands of the United States,' specifically referred to and set forth in the answer of the said defendant, the Missouri Pacific Railway Company, in this cause.

"8. Said Supreme Court of Nebraska erred in denying and overruling the plea in abatement of the defendant, the Missouri Pacific Railway Company, to the jurisdiction of said court wherein and whereby it appeared that on the 24th day of December, 1888, John Fitzgerald, the original plaintiff herein, instituted an action in his own name against the Fitzgerald and Mallory Construction Company to recover from said company an amount alleged to be due from said company, and thereby by due proceedings caused an attachment to issue and garnishment notice to be served upon the Missouri Pacific Railway Company charging it as garnishee, and thereby placing whatever fund or moneys might be due from it to said Construction company in the custody of the law, and whereby it further appeared that by due proceedings had, said action so instituted by said John Fitzgerald was in due time properly removed from the District Court of Lancaster County, Nebraska, in which it was instituted, to the Circuit Court of the United States in and for the District of Nebraska, and under and by virtue of section 4 of the removal act of Congress, March 3, 1875, the said attachment and garnishment proceedings were wholly removed into said Circuit Court of the United States, and said court then and there, by virtue thereof, acquired exclusive jurisdiction of said fund and moneys due from said Missouri Pacific Railway Company to said Fitzgerald and Mallory Construction Company and of any controversy between said companies with respect to such fund.

"9. The said Supreme Court of Nebraska erred in holding and deciding that under and by virtue of said removal act of Congress the said fund so garnished in the hands of the Missouri Pacific Railway Company was not placed in the custody and under the exclusive control of said Circuit Court of the