corporation not engaged in interstate commerce of its right to remove a case into the Federal Courts may entail upon it unpleasant consequences from which the Courts of the United States cannot protect it. Thus, it has been held that a State has the absolute right to say whether a nonresident corporation, not engaged in interstate commerce, shall do business within its borders or not. It may not, as a condition of permitting that corporation to do such business require it to surrender any constitutional right such as that of removal. But it may, whenever it chooses and for any reason or for none, refuse or withdraw such permission. It is immaterial that the motive for such withdrawal is a wish. to penalize the corporation for removing a case into the Federal Courts.1

326. A State May Not Arbitrarily Exclude From Its Borders a Non-Resident Corporation Engaged in Interstate Commerce.-The rule is different as to non-resident corporations engaged in interstate commerce. The State cannot either take away the right of removal or punish its exercise.1

327. State Laws Prohibiting the Removal of Certain Classes of Suits Invalid.-Sometimes the States have attempted to provide that certain kinds of actions, or actions in which certain classes of corporations are defendants, shall be brought in a particular Court only. Thus—

A

The State of Nevada authorized Lincoln County to issue bonds and provided that litigation concerning them should be carried on in a particular State Court and not elsewhere. holder of the bonds brought suit against the county in the Circuit Court of the United States for the District of Nevada. and the Supreme Court held that he had the right to do so. The power to contract with citizens of other States implies liability to suit by them, and no statutory limitation of that

'Doyle vs. Continental Insurance Co., 94 U. S. 535; Security Mutual Life Insurance Co. vs. Prewitt, 202 U. S. 246.

1 Harrison vs. St. Louis & San Francisco R. R. Co., 232 U. S. 318.

liability imposed by a State, can defeat a jurisdiction given by the Constitution.1

1

In Iowa the Probate Court had exclusive jurisdiction to determine the validity of claims against the estate of a deceased person. The proceeding involved a judicial determination as to the liability of the estate for the amount of the claim, with parties before the Court to contest all questions of law and fact. It was clearly a suit within the meaning of the Removal Acts. A claimant had a case removed from the Probate Court to the Circuit Court of the United States. The Supreme Court said:

"The removal in this case was, therefore, proper, unless it be competent for a State, by legislative enactment conferring upon its own courts exclusive jurisdiction of all proceedings or suits involving the settlement and distribution of the estates of deceased persons, to exclude the jurisdiction of the courts of the United States even in cases where the constitutional requirement as to citizenship is met. But this court has decided, upon full consideration, that no such result can be constitutionally effected by State legislation."2

328. Right of Removal as Affected by Venue Provisions. The provision that a defendant may not be sued except in a particular district or districts is a personal privilege given him which he may waive, and he does waive it by entering a general appearance.1

A defendant who seeks to remove a case from a State to a Federal Court of a district in which he could not have been sued without his consent, waives the objection to the jurisdiction of the latter Court. If the plaintiff takes any other action in the United States Court than to move to remand, he, also, waives his right to object to its jurisdiction. Both of them are thereafter estopped to question the propriety of the District Courts proceeding with the case.2

1 Western Loan & Savings Co. vs. Butte & Boston Consolidated Mining Co., 210 U. S. 36S.

2 In re Moore, 209 U. S. 490.

329. Right of Removal as Affected by Assignment Provisions. Prior to 1887 the provision that an assignee of a chose in action could not sue in the Federal Court unless the criginal contracting party to whose rights he had succeeded could have there sued, had no application to cases originally brought in a State Court and which the defendant sought to remove to the Federal. Such cases were not within the mischief against which the assignment provision was directed. It was the defendant who exercised the right of removal. He, of course, had nothing to do with any collusive transfer of the contract to the person who was seeking to hold him liable. It might be that the assignment had actually been made for the purpose of putting the claim in the name of one who would have local bias in his favor. Whether it had been or not, the defendant would be quite as likely to suffer from State or sectional prejudice as he would, had the contract originally been made with the assignee.

All the earlier decisions distinctly recognize that if “A,” a citizen of New York, contracted with "B", a citizen of the same State, and "A" assigned his rights to "C", a citizen of · Pennsylvania, and "C" sued "B" in the Courts of Pennsylvania, "B" could remove the case to the Circuit Court of the United States for that district of Pennsylvania in which the suit was brought. But the Act of 1888 laid down a new rule. It provided that no case could be removed unless it was a case which originally could have been brought in the Court of the United States to which removal was sought. It is clear that "C" could not have sued "B" in the Federal Court. It follows that such a case cannot now be removed. A Colorado corporation had certain claims of large amount against another Colorado corporation. It assigned those claims to a citizen of New York, who brought suit against the defendant corporation in one of the State Courts of New York. The defendant sought to remove the case into the United States Circuit Court for the Eastern District of New York. It was held that it could not do so.1

1 Mexican Nat'l R. R. Co. vs. Davidson, 157 U. S. 201.

330. Actual Plaintiff May Prevent Removal By Making Fictitious Assignment.-A plaintiff may so arrange matters as to make it impossible for a defendant to remove a case. Two Iowa corporations had claims against a citizen of New York. They transferred those claims to another citizen of New York under an agreement by which he was to exercise reasonable diligence to enforce them, and after deducting all costs and expenses incurred in so doing he was to hold the amounts collected in trust for the use and benefit of the parties owning the same. He brought suit in an Iowa State Court. The defendant attempted, under an earlier statute, to remove the case into the United States Court, alleging that the plaintiff was only a nominal party and had no interest therein whatever, but was prosecuting the suit for the sole and exclusive use and benefit of the Iowa corporations, which employed counsel to prosecute it and were directing and controlling it. The Supreme Court said:

"It may, perhaps, be a good defense to an action in a State court, to show that a colorable assignment has been made to deprive the United States Court of jurisdiction; but *** it would be a defense to the action, and not a ground of removing that cause into the Federal Court."1

331. How Plaintiff May Prevent Removal By Joining as a Defendant a Resident of the State.-A much more common way, however, of preventing the removal of a case from the State to the Federal Courts is for the plaintiff to join in one action the non-resident defendant with others who are residents. This has become not unusual in negligence cases. Where, for example, someone has suffered an injury upon a railroad operated by a non-resident corporation, the plaintiff may bring suit against the railroad, uniting as defendants some of its employees who happen to be citizens of the State.

A woman was killed by a train of the Alabama Great Southern Railway, an Alabama corporation. Her adminis

Oakley vs. Goodnow, 118 U. S. 43.

trator, a citizen of Tennessee, brought suit in a Court of the latter State against the Railway Company and against two citizens of Tennessee, respectively, the conductor and engineer of the train. In his complaint he charged that the accident was the result of the joint negligence of all the defendants. The Railway Company attempted to remove the case to the United States Court. The Supreme Court held that the right to remove depended upon the case alleged by the complaint. It said: "The fact that by answer the defendant may show that the liability is several cannot change the character of the case made by the plaintiff in his pleading so as to affect the right of removal." The Court added:

In

"It is to be remembered that we are not now dealing with joinders, which are shown by the petition for removal, or otherwise, to be attempts to sue in the State courts with a view to defeat Federal jurisdiction. such cases entirely different questions arise, and the Federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the Federal courts of the protection of their rights in those tribunals."***"In good faith, so far as appears in the record, the plaintiff sought the determination of his rights in the State court by the filing of a declaration in which he alleged a joint cause of action. Does this become a separable controversy within the mean of the act of Congress because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly?”

The Court thought not.1

332. Defendant May Show Joinder of Resident to Be Fraudulent. If the defendant proves that the joinder is fraudulently made for the purpose of defeating removal, he

can remove.

The plaintiff attempted to prevent a removal by joining as co-defendants with the principal defendant one of the latter's employees, a citizen of plaintiff's State. Defendant

1 Alabama Great Southern Ry. Co. vs. Thompson, 200 U. S. 206.