The Wolf Point herald. (Wolf Point, Mont.) 1913-1940, 1922-01-19

Inc action OF the Yellowstone Ma
| tional bank VS.. Rosenbaum Brother
& Co., his decision in which callet
forth the above remarks, arose from
l a mortgage held by the bank at Bill
lings on sheep, which were subse
%quently handled by the defendan
t company in Chicago. The bank start
| ed suit in the Yellowstone distric
court, and defendant caused it to bt
transferred to federal jurisdiction
The bank then moved to have the
venue changed back to the state
court.
Judge Bourquin's decision is ap-
pended:
Plaintiff is a national bank Of
this state, and defendant is a cor
poration of Illinois. The action In
trover was brought in a state court.
process was served in this state upon
defendants president, defendant ap-
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 VS..
Co. 268 Fed. 610 and its construction
of the rule of Wisner's case and
Moore's. The Nickels case supports
plaintiffs contention, but it is be-
lieved its construction of the rule
aforesaid is erroneous.
THAT rule is hat 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 a
state court within the district of
plaintiffs residence.
Brought in a state court within
any other district, jurisdiction of
plaintiffs person IN removal is Sc
cured only by his like waiver of OBJ
lection to venue and not to process.
"(Query. With plaintiffs consent
a removal be had of a 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 a district wherein brought
in a 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 removal
nonresident defendants, it follows
there can be removal without plant
ifs consent of suits brought in the
district of PLAINTIFFS residence. but
not of suits brought elsewhere. AS
suming this to be the rule of Wisner's
case and Moore's, the fallacy of
NickePs Ease is that it conceives the
to be that without plaintiffs
consent, there can not be removal I'M
less prior thereto compulsory juris-
diction of defendants person is act
ually secured in the state court by
carvrioo Of nrOaacc on him ThnI
rule does not require such construc-
ton, and to infer it is to destroy
lights always heretofore assumed to
contemplated by the statute, viz:
'emoval to ecu in the federal court
determination of all issues, whether
If process, provisional remedies or
he merits, and to that end to remove
he cause at "any time before the de-
is required to plead"
n the state court, or in other words,
process served or even issued.
at will be remembered that de-
endant's appearance to remove the I
is special whether or not he
o characterizes it, and he need file I
10 pleading in the state court. t
"All defendants motions or plead
ngs whether in respect to process, |
Provisional remedies, or merits, may |
filed in the federal court after re- {
noval. In Remington's case, 1913 u. t
!. 95, practically call fours" this at I
ar in the state court defendant NOV f
d quashal of process which was den q
ed, removed the cause to the federal
curt, therein renewed his motion to
uash, plaintiff objected to it's con- t
Iteration and moved to remand, and d
uashal was granted and remand e
enied. C
"In legal effect, without having y
cen served with process, defendant I
ppeared and had compulsory remov- e
| of the cause. n
$50 far as removal is concerned, :
valid process can issue and in
1eory may be served, it suffices for
compulsory jurisdiction of de-
sndant's person contemplated by
and rule, and authorizes com
ulsory removal.
khN