BERMAN fl. 'M'KINNEY.
689
HERMAN tI. MCKINNEY
et al.
(Circuit Court, D. South Dakota, E. D. November 8,1890.) COURTS-ADMISSION OP STATES-TRANSFER OP CAUSES.
The right to remove t6 the federal courts causes pending in the territorial court. of Dll.!l;Qta when the two states were admitted to the Unipn depends not upon Act Cong.Aug.13, l888, upon removal of causes in l1;eneral,but upon the enabling act of Feb. 22, 1889, § 23, which provides that cases which would have been of federal jurisdiction, when brought ,if such courts had existed shall be removed upon the request of either party, andbence a motion to remand cannot be sustained upon the ground that the removal was made at the demlLlld of .. defendant residing in the ,state. '
to remand. McMartin eft, Carland, ,for complainant. Kietp, &; Baies, and Winsor Kittredge, for defendants.
J. The complaint in this cause was filed November 2,1888, liistrict court of county, Dakota territory. the comthen being 8 citizen of the state (,)f New York, the defendant being a citizen of Dakota territory, and the defendant corporation, then a natiqnal bank, created under the statutes of the at Sioux Falls, United States, 8p.d havingits principal place of in the the'p territory of Dakota. The citizenship and residence of the seyera} has, remained unchanged ,except as that of the defendants has been affected by the admission of South DakQta as one of the states of the federal Union, under the provisions of the act of congress approved and commonly reJerred to as the "Omnibus Bill." February 22, Under the constitution and laws of the state of South Dakota, the court of original trial jurisdiction is known as the "circuit court." Upon the admission of the state, the record and files in this cause passed into the custody of the state circuit court, and on the 10th day of May, 1890, the defendants filed a written request in court for the transfer of the cause to this court, ;,vhich request was granted, and the papers and record have been in due form transferred to and docketed in this court. Complainantnow moves for an order remanding the case to the state court. on the ground that this court has not jurisdiction thereof; that the. defendants, on whose reqpest it was brought into this court, were, when the suit was brought, residents of the then territory of Dakota, and, when the removal was reqtiested, residents of the state of South Dakota; and'that a removal from a statE: court to this court cannot be hadtipon petition Of a resident of this state. The right of removal in thlsoause is not dependent upon the aot of congress of August 13, 1888, ilmending the act of March 3, 1887. It depends upon the provisions of the act uuder which South Dakota was admitted to the Union, and which, in .terI11s,mad'e; provision for the disposition of causes pending in the courts of flleterritory. By the twenty-third section of that act it is, in subthat cases which would have been of federal jurisdiction stance, whe:n'brCWg;lh, if S'outh pakota had then been a state with a federal court v.43F.no.11-44
in,
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organized therein, are, at the request of either party, transferable to the federal court. This statute not onlj>:' doeS: nbt'l1fiiit the right of transfer to the non-resident defendant, as is the fact in many of the clauses of bf1888;l>ut 'it pressly con 'it' up6h all:tlie parties, the gardlp.ss of their position onthe ll.nd vrith.9ut.li;mil;jl,tion ·as t<> theil:,iesidence.. Iri ,this particUJiudnestlltute.is too 'cleal't()Dllel!> eonstructiol'itdahow its meaning; In aubstance;'the federal the cases a! federal of the: fa?ts .e,,!sttng hraug?t; :.·f\P-P;, .lSQl\e ;()f, federal. of ;thepartles may cause it to be transferred to the federal court. It is not strictly a 'of removal from a of :the questIon whether, under the om.nlbu.s'l:illl, of successorship in the federal court. When $2,000. The were!i:e'SideritS andcitizefts'df di'frerent states, viewthe. act us to do, the of as being then 8 ,state;, fn:i'otherrWords, if;.riWhen'thig' wasbroughtl there 'had feder& colirt for S6uth Dakota/it'#ou,1d·have had jn'!isdictidn of 1th1!fcause; b?ingso, then: undettheon1nibus'act, .eitherpal'ty'(\(jldd cause' itt6' bMransfetrd4 into the federal court; ·This ''View is- in:'&ceorthmce' with ithe' constructionplaeed 'updri lthis section of .tneomtiious bill iti' the Wfittenoplniori; delivered' by,cru,dgeEIXlER'toN uponl ll.' simila:r motion to in the case Mining ·Gb.,injrri,t6 'which:refetance for' ,8 m,ord fup.'discussion oftha 'qMstioih ;'"'Motion to' remand , "' .. ""
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Apt pong. Eeb. 22, 1!l811; 1,1n4e.r the , 'l1nioHipro\"ldes,' in'section J:23;'thlit; 'upOn ttieowritteilootise,bt 'of'& 'party, all ·. pendilllf .ip tiJlJe pf·.dmission."Wheraof ilie circuit or dilltbi!\ "lltllstAbUsh«¥i migbt bave b!!'4 under tobe laws Oftbe , ..trict ':., 'United'States'had'!I1I.C1:iconrtli existed at tb'e tlmedf the"oommElnoement of'Such ,qallellj!' annll be the circuit alld; district !courts.. Beld, "thatt\1epr\>vision applietlto a in Wpich the plaintiff Wlil8 a, citizlln of DaJr:ota ,.! citi2en state, at the cOmmencement'of the . , ,'.'" ., ' 1 . I..""" . .' "':". ," ", ' .
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