197 F. 488 | D. Mont. | 1912
This is a motion to remand. Plaintiffs are citizens and residents of Canada, and defendant is a citizen and resident of Minnesota, a corporation and common carrier owning and operating a railway in and through the county of Montana wherein the suit was commenced.
Plaintiffs contend that against their objections this court has -no jurisdiction on removal, citing Mahopoulus v. Railway Co. (C. C.) 167 Fed. 169; Kamenicky v. Printing Co. (C. C.) 188 Fed. 400; Sagara v. Railway Co. (C. C.) 189 Fed. 222. Defendant contends to the contrary, citing Barlow v. Railway Co. (C. C.) 164 Fed. 765; Decker, Jr., & Co. v. Railway Co. (C. C.) 189 Fed. 224; Bogue v. Railway Co. (D. C.) 193 Fed. 728. The issue is one of venue, process, and objections to jurisdiction based thereon.
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In addition to the foregoing and in more particular and brief reference to the cases in support of the exception claimed, heretofore cited, Bogue v. Railway Co., supra, would seem clearly inconsistent with the decision of the Supreme Court in Railway Co. v. Gonzales, supra,' and to which it makes no reference; for, while the former holds that a corporation of one state may be a resident within another and so suable in a federal court therein by a nonresident citizen (and by an alien if the principle be sound), in the latter the'Supreme Court decided that for purposes of suit by an alien (and equally so by a citizen) the residence, habitat, and citizenship of a corporation are solely in the state of its incorporation, and in the federal district thereof wherein are its principal offices. Decker, Jr., & Co. v. Railway Co., supra, seems to go upon the theory that but for the exception the alien has a choice, denied to citizens, of a forum. The reason and object of removal deprives this theory of weight. Barlow v. Railway Co., supra, maintains the exception on the ground that, when an alien sues in a state court, he voluntaidly subjects himself to the process of the federal court on removal; that is, in advance and *in the state court he waives objections to the jurisdiction of the federal court on removal. But one cannot be held to waive an objection to jurisdiction over his person other than by appearing generally in the court claiming such jurisdiction, or therein giving some express consent or stipulation, and, it is believed, never in advance of the institution of proceedings in the court the jurisdiction of which is involved. For the foregoing reasons, this court has no jurisdiction over the plaintiffs, and the motion to remand is granted, with costs to plaintiffs.