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business and having a managing or business agent, cashier, or secretary within the state" shall be made by delivering a copy of the process to such agent, cashier, or secretary. The marshal made return upon a subpoena that he had served it upon "H., agent for" a foreign corporation, defendant. An uncontroverted affidavit, presented upon a motion to quash the service, stated that one L. was the managing agent of the defendant in the state. Held, that the service was bad.

Joseph M. Kinley, for complainant.
Finlayson & Finlayson, for defendant.

WELLBORN, District Judge. This is a motion to quash and set aside service of subpœna on the ground that the writ was not served upon the managing or business agent, cashier, or secretary of the defendant. Defendant is a corporation formed under the laws of the state of New York, and doing business in the state of California. The law of the latter state regulating the service of process upon foreign corporations is as follows:

"Sec. 411. The summons must be served by delivering a copy thereof as follows: * * 2. If the suit is against a foreign corporation, or a nonresident joint stock company or association, doing business and having a managing or business agent, cashier, or secretary, within this state: to such agent, cashier, or secretary." Code Civ. Proc. Cal. § 411, subd. 2.

The return of the marshal on the subpoena states that he served the same upon "L. A. Hitchcock, agent for the Manhattan Life Insurance Company at Los Angeles, California." It appears from an affidavit offered by defendant in support of its motion, and made by one John Landers, and which is uncontroverted, that said Landers is the managing agent, or, as he styles himself in the affidavit, "the resident manager," of the defendant in California, with his office in the city and county of San Francisco; and, further, that said Hitchcock is not, and never has been, the managing or business agent of defendant. Upon these facts, and under the law above quoted, I am of opinion that the subpoena has not been legally served, and an order will be accordingly entered, allowing defendant's motion, and quashing and setting aside the service evidenced by the above-mentioned return of the marshal.

RITTER v. MUTUAL LIFE INS. CO. OF NEW YORK.

(Circuit Court of Appeals, Third Circuit. March 9, 1896.)
No. 2.

APPEAL FROM CIRCUIT COURT OF APPEALS TO SUPREME COURT,

After the affirmance by the circuit court of appeals of a judgment for defendant, and the going down of the mandate, the plaintiff in error filed a petition in that court, stating that he desired to take an appeal to the supreme court of the United States, and praying that "the said mandate be recalled, and that the said record be directed to be returned to this court," and for "such further order as may be necessary to enable him to perfect his appeal." Held, that the recall of the mandate was unnecessary to the taking of an appeal, and that as the transcript of the record is never remitted to the court below, but remains in the appellate court, the prayer of the petition must be denied.

In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

This was an action by A. Howard Ritter, executor of the last will of William M. Runk, deceased, against the Mutual Life Insurance Company of New York, to recover upon policies of life insurance. There were a verdict and judgment for defendant (69 Fed. 505); and on appeal to this court the judgment was affirmed (17 C. C. A. 537, 70 Fed. 954). After the going down of the mandate, the plaintiff in error filed the following petition in this court:

The petition of A. Howard Ritter respectfully represents: That he is the plaintiff in the above cause, which is an appeal fron the judgment entered on the 2d day of December, 1895, in favor of the defendant, to wit, Mutual Life Insurance Company of New York, affirming the judgment of the court below. That on the 8th day of January, 1896, a mandate was duly issued from this court certifying that the judgment of the said court below was affirmed, which said mandate has been filed in the court below. That the effect of said judgment in this court was to deny the right of your petitioner to recover certain moneys; and that, since said judgment was entered, no change in the relations, situation, or condition of either of the parties has been made or occurred, but they are now precisely as at the time said judgment was rendered. That your petitioner desires an appeal from the judgment of this court to the supreme court of the United States. He therefore prays that the said mandate be recalled, and that the said record be directed to be returned to this court, and that such other and further order be made herein as may be necessary to enable your petitioner to take and perfect his said appeal. And your petitioner will ever pray, etc. A. Howard Ritter, Exr.

George Tucker Bispham, for the motion.
C. P. Sherman, contra.

Before ACHESON, Circuit Judge, and WALES and GREEN, District Judges.

PER CURIAM. The prayer of this petition must be refused. We do not see that the plaintiff needs the recall of our mandate in order to make his proposed application to the supreme court. The transcript of the record is never remitted to the court below, but remains in this court. That is the case here. The prayer of the petition is denied.

WICHITA NAT. BANK OF WICHITA et a. v. SMITH.

(Circuit Court of Appeals. Eighth Circuit. January 7, 1896.)

No. 687.

1. REMOVAL OF CAUSES-DIVERSE CITIZENSHIP.

A suit brought in a state court can be removed to a federal court on the ground of diverse citizenship only when the defendant is a nonresident of the state in which it is brought. Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371, followed.

2. SAME-NATIONAL BANK.

A national bank cannot remove a suit upon the ground that it is a federal corporation.

3. SAME-FEDERAL QUESTION-COMPLAINT.

A cause cannot be removed upon the ground that it involves a federal question unless, that fact appears from the plaintiff's complaint.

In Error to the Circuit Court of the United States for the District of Kansas.

This action was brought in the district court of Sedgwick county, Kan., by Sylvester Smith, the defendant in error, against the Wichita National Bank, a banking association established under the laws of the United States, located at Wichita, in the state of Kansas, for the recovery of $5,000 damages for the alleged wrongful conversion of a mortgage coupon bond by the bank. The bank was duly served with a summons in the action on the 15th day of March, 1893, and filed its answer on the 11th day of April, 1894. On the 13th day of August, 1894, the bank became insolvent, and on the 5th day of September, 1894, W. N. Ewing was duly appointed receiver thereof by the comptroller of the currency. On December, 12, 1894, Ewing, as receiver of the bank, filed a motion in the state court to be made a defendant in the action, which motion was sustained, and thereupon, on the same day, the receiver filed a petition to remove the case into the circuit court. The petition for removal states that the plaintiff, Smith, is a citizen of Connecticut, and that the bank was a citizen of Kansas up to the time it passed into the hands of the receiver; that when the bank became insolvent the petitioner was appointed receiver thereof by the comptroller of the currency; that the matter in dispute in the suit "draws into question and comes properly under the" national banking act and other acts regarding the insolvency and winding up of national banks, and that the controversy is wholly between the receiver and the plaintiff in the action. The state court granted the removal. The circuit court overruled a motion to remand the case. There was à trial to a jury, and a verdict and judgment for the plaintiff, and the receiver sued out this writ of error.

Fred W. Bentley (David Smyth was with him on the brief), for plaintiffs in error.

Thomas G. Frost, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The removal of the case from the state to the federal court is attempted to be supported upon two grounds. The first contention is that the removal can be sustained upon the ground that the parties to the action are citizens of different states; but that is a ground of removal only where the defendant is a nonresident of the state in which the suit is brought. Thurber v. Miller, 14 C. C. A. 432, 67 Fed. 371. The bank could not remove the suit upon this ground for the reason that by the provision of section 4 of the act of congress of March 3, 1887 (24 Stat. 552, c. 373), as corrected by the act of August 13, 1888 (25 Stat. 433, c. 866), the bank, for all jurisdictional purposes, is a citizen of Kansas, in which state it is located. The appointment of a receiver for the bank did not dissolve the corporation. The bank still remained a proper party to the suit. There is nothing in the petition for removal or in the record showing the residence or citizenship of the receiver to be elsewhere than in Kansas. The suit was not, therefore, removable upon the ground of diverse citizenship.

It is next contended that the suit was properly removed upon the ground that it is one arising under the laws of the United States. Since the passage of the act of March 3, 1887, a national bank cannot remove a suit upon the ground that it is a federal corporation. The federal origin of the bank no longer affects in any way the jurisdic

tion of suits by or against it. It has no greater or less right to remove a suit upon the ground that it arises under the constitution or laws of the United States than any citizen of the state in which the bank is located. Petri v. Bank, 142 U. S. 644, 12 Sup. Ct. 325; Burnham v. Bank, 10 U. S. App. 485, 3 C. C. A. 486, 53 Fed. 163; Dill. Rem. Causes (5th Ed.) § 107. And upon this record the receiver of the bank has no greater rights in this regard than the bank. In Railway Co. v. Shirley, 111 U. S. 358, 361, 4 Sup. Ct. 472, the court say "that a substituted party comes into a suit subject to all the disabilities of him whose place he takes so far as the right of removal is concerned." Burnham v. Bank, supra; Railway Co. v. Noyes' Adm'r, 21 U. S. App. 45, 8 C. C. A. 237, 59 Fed. 727. Moreover, the petition for removal does not show that any federal question is involved in the case, and the record shows that no such question is involved. But, if the peti tion for removal disclosed that the suit was one arising under the laws of the United States, it could not be removed by the defendant upon that ground unless that fact appeared from the plaintiff's complaint. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654; Postal Tel. Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192. The complaint does not show that the suit is one arising under the laws of the United States, but the contrary. The judgment of the circuit court is reversed, and the cause remanded, with directions to remand the same to the state court from whence it was removed. Ewing, the receiver, having wrongfully removed the case into the circuit court, must pay all the costs in that court as well as all costs that have accrued in this court.

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EQUITY PRACTICE-ABATEMENT-PENDENCY OF OTHER SUITS.

One F. died intestate. His widow was appointed administratrix, and instituted proceedings in a state court for distribution of his estate to herself and his mother, brothers, and sister, as his heirs. One H., a minor, intervened by guardian in these proceedings, claiming to be an illegitimate child of F., recognized as such by F., in writing, in his lifetime, and claimed one-half of the estate, as F.'s heir. The mother, brothers, and sister of F. then began a suit in the United States circuit court, before any jurisdiction of them had been obtained in the state court, to have H.'s claims declared invalid; but, before they had obtained jurisdiction of H. in this suit, they appeared in the state court proceedings by an application to remove the same to the federal court on the ground of diverse citizenship, which application was granted. H. then filed a plea in abatement of the suit in the federal court, on the ground that jurisdiction of all parties and of the issues raised was first obtained in the proceedings in the state court. Held, that as there was but one issue to be tried, which was the same in both proceedings, and as all parties were first served or appeared in the proceedings begun in the state court, an order should be made, in the suit begun in the federal court, suspending all proceedings therein until the questions raised in the other cause were disposed of, or until the further order of the court.

W. E. F. Deal, for complainants.

James F. Dennis and Henry Mayenbaum, for respondents.

HAWLEY, District Judge (orally). On July 26, 1894, M. D. Foley died intestate in Washoe county, Nev. The value of his estate is estimated and was appraised at over $150,000. On August 1, 1894, Mrs. Minnie D. Foley, widow of deceased, petitioned the district court of Washoe county for letters of administration, and on the 20th day of August she was duly appointed administratrix of said estate. On the same day T. V. Julien was appointed an attorney to represent the absent heirs. On July 12, 1895, the administratrix filed a petition praying for partial distribution of the estate. In this petition she states the heirs of M. D. Foley, deceased, other than herself, to be Johanna Foley, his mother; John D. Foley, Jeremiah Foley, and Edmund D. Foley, his brothers; and Anna D. Foley, his sister. August 20, 1895, was set for the hearing of said petition, and due notices thereof were posted as required by law. On the 13th day of July, 1895, Dr. George H. Thoma filed a petition for letters of guardianship of the person and estate of Vernon Harrison Hartley, a minor, claiming that said minor's estate "consists of an undivided one-half of the estate of M. D. Foley, deceased, to wit, real estate and personal property in said county," and on the same day an order was duly made and entered appointing Dr. Thoma as guardian of said minor's person and estate. On the 9th day of August, 1895, John D. Foley, his brothers, mother, and sister, who will hereafter be designated as the "nonresident heirs," commenced this suit in the United States circuit court; averring that the claim of the defendants casts a cloud upon their title to the one-half interest of the estate of M. D. Foley, and praying for a decree that said minor, Vernon Harrison Hartley, "does not own, nor is he entitled to have, any part of the estate of said M. D. Foley, deceased, as an heir at law or otherwise, and that your orators are heirs at law of said M. D. Foley, deceased, and as such are entitled to the undivided one-half thereof claimed by said minor," etc. On the 16th day of August, 1895, Vernon Harrison Hartley, by his guardian, filed in the proceedings pending in Washoe county an answer to the petition of Mrs. M. D. Foley for partial distribution; averring, among other things, "that he, the said minor, is the posthumous and illegitimate child, and the son and offspring, of said M. D. Foley, deceased, and is the son and offspring of his mother, Alice M. Hartley," an unmarried woman; that before his birth his said father, M. D. Foley, deceased, prior to his death, did, in writing signed in the presence of a competent witness, acknowledge himself to be the father of said illegitimate child. He objects to any distribution to the "non-resident heirs," and prays for a decree that they are not entitled to any part of said estate, and that one-half of said estate be distributed, awarded, and given to said minor child. On the 17th day of August, 1895, the district court made an order that the 23d day of September, 1895, be appointed for the hearing of the petitions of Mrs. M. D. Foley and

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