The Powder River County examiner and the Broadus independent. [volume] (Broadus, Mont.) 1919-1935, 1922-02-03

this state, and defendant IL Q cor:
poration Of Illinois. The action In
trover was brought in q state court,
process was served in this state upon
defendants president, defendant APP
peared specially to Quash and dismiss
and to remove the cause hither, also
apparel specially herein to Quash,
and plaintiff appeared specially to
remand.
Plaintiffs contention is that since
defendant insists It was not legally
served with process and is not sub
ject to process In this state for that
It is in no respect to be found In It,
the action could not have been
brought and maintained In this court
against defendants objection; and
that in consequence It can not be re-
moved hither against plaintiffs OBJ
lection.
"And appeal is made to Nickels W.
Co. 26S Fed. 60 and it's construction
Of the rule of Wisner's case and
Moore's. The Nickels case supports
plaintiffs contention, but It II be-
lieved its construction Of the rule
aforesaid is erroneous.
THAT rule IL that any federal
court has original Jurisdiction Of
suits between citizens of different
states. but compulsory Jurisdiction
Of the parties persons only when the
suit is brought in the district of the
residence of one of them. Otherwise
brought, Jurisdiction is secured Of de-
PENDANTS person only by his waiver
Of objection to improper venue, not
to improper process because there
can be no process nor service.
Likewise, any federal court has
jurisdiction on removal of such suits.
but compulsory jurisdiction Of the
parties persons only where the suit
is brought in and removed from q
state court within the district Of
plaintiffs residence.
Brought in state court within
any other district, jurisdiction OF
plaintiffs person on removal is Sc
cured only by his like waiver Of OBJ
lection to venue and not to process.
"(Query. With plaintiffs consent
can removal be had of suit brought
in the district of defendants resi-
dence? Probably it could, as a suit
within the Jurisdiction Of the federal
courts anywhere.)
"Hence, a suit brought in a state
court in q district wherein brought
In Q federal court there Is no com.
pulsory jurisdiction of defendants
person, can not be removed to the
federal court and thereby secure com
pulsory jurisdiction of plaintiffs per
son.
"And the statute limiting remova
to nonresident defendants, 1t follow:
there can be removal without plant
IFS consent of suits brought in tn.
district of plaintiffs residence, bu
not of suits brought elsewhere. As
Stunning this to be the rule Of Wisner',
case and Moore's, the fallacy o
Nickel's case is that It conceives tn
rule to be that without plaintiff
consent, there can not be removal un
less prior thereto compulsory juris
diction Of defendants person is act
ually secured in the state court b,
valid service Of process on him. TIL
rule does not require such construc
ton, and to infer It Is to destro,
rights always heretofore assumed t,
be contemplated by the statute, viz
determination of all issues, whethe
OF process, provisional remedies o
the merits, and to that end to remov
the cause at "any time before the de
PENDANT is required to plead
in the state court, or in other words
before process served or even issued
1T will be remembered that de
PENDANTS appearance to remove tn
cause Is special whether or not b
90 characterizes 1t, and he need I'll
no pleading in the state court.
"All defendants motions or plead
ings whether In respect to process
provisional remedies, or merits, ma
be filed in the federal court after re
. moval. In Remington's case, 1913
Is. IS, practically ''all fours'' this q
bar in the state court defendant mo,
ed Quashal Of process which was der
!. led, removed the cause to the feders
court, therein renewed his motion
Quash, plaintiff objected to its cor
, sideration and moved to remand, an
: quashal was granted and reman
,, denied.
''In legal effect, without havin
D been served with process. defendar
I appeared and had compulsory reno,
4 al of the cause.
III $50 tar as removal In concerned
ol Il valid process can issue and
( theory may be served. It suffices fc
. the compulsory Jurisdiction Of d
PENDANTS person contemplated b
1 statute and rule, and authorizes con
I Ipulsory removal.
q "To defeat removal, no immateri,
speculation or conjecture will be II
: dulged that perhaps defendant wi
not at any time be found long enoue
within the district to permit and q
compltsh service Of process.
Indeed, Nickel's case recogniz,
this as the rule: for after construin
1t as aforesaid, It decides that II ,
the time plaintiff brought the su
In the state court that courts pr
cess could have been served on d
fendant, remand viii be denied eve
though service had not been mad
That 10, II service 10 possible
Theory, no speculation will be i