47 F. 705 | U.S. Circuit Court for the District of Eastern Michigan | 1891
(after stating the facts as above.) It is argued in support of the motion to dismiss that the misdescription in the declaration of plaintiff’s political status, the failure to allege that of his assignor, and the latter’s change of citizenship pending the suit, have wholly deprived the court of jurisdiction, and that under section 5 of the act of March 3, 1875,
“That if an alien become a citizen pending the suit, the jurisdiction which was once vested is not divested by this circumstance. * * * Whore there is no change of party, a jurisdiction depending upon the condition of the party, is governed by that condition, as it was at the commencement of the suit. ~ * * If an alien should sue a citizen, and should omit to state the character of the parties in the bill, though the court could not exercise its jurisdiction while tins defect in the bill remained, yet it might, as is every day’s practice, bo corrected at any time before the hearing, and the court would not hesitate lo decree in the cause.”
It is said, however, that tho amendment would be futile if made, because the defendant would then plead in abatement the provision of section 1 of the act of March 3, 1887, forbidding suit to be brought in United. States courts against any person elsewhere than in the district “of which lie is an inhabitant.” As counsel have invited decision upon this point, and the trial may be expedited by its determination, it is as well to dispose of it. The argument admits of two answers: First. This suit was pending when the act of March 3, 1887, was passed. By the proviso of section 6 of that act, such suits are expressly excepted from its operation. Second. The exemption from liability to suit elsewhere than in tho district of his residence is a personal privilege of the defendant, which is waived, unless pleaded in abatement. The defendant, having appeared generally, and pleaded in bar, cannot now withdraw its appearance, and plead a dilatory plea, without leave of tho court. Cooley v. McArthur, 35 Fed. Rep. 373, aud cases cited. It is not claimed that the amendment asked will necessitate any new defense, aud, so far as at present appears, there can be no injustice in requiring any addition;)! plea to be filed forthwith, so that the trial may proceed at the present term.
The second ground of the motion has been so frequently decided against the defendant’s position that it is noticed here only that counsel may know it has not been overlooked. Muller v. Dows, 94 U. S. 444; Steam-Ship Co. v. Tugman, 106 U. S. 118,1 Sup. Ct. Rep. 58, and cases therein referred to.
"Sec. 5. That if, in any snit commenced in a circuit court, or removed from a state court to a circuit court, of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit, or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just; but the order of said circuit court dismissing or remanding said cause to the state court shall be reviewable by the supreme court on writ of error o* appeal, as the case may be. ”