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ficer are clearly defined in the statutes to wbich reference is made.
The intimidating effect of the acts of appellee upon the dealers in the syrups is set out and the detriment resulting therefrom to appellants detailed.
It is manifest from this summary of the allegations of the bill that this is not a suit against the State. Cunningham v. M. & B. Rd. Co., 109 U. S. 446; Pratt Food Co. v. Bird, 148 Michigan, 631. It is not a suit, as was Arbuckle v. Blackburn, supra, to restrain a criminal prosecution. Indeed, the bill alleges that a criminal prosecution was invited by appellant and refused by appellee, and refused, it is alleged, to serve the purpose of what the bill denominates a "crusade" against the syrups of appellants, and in dereliction of duties enjoined by the statutes of the State.
Decree reversed and the case remanded for further proceedings.
MR.JUSTICE HARLAN concurs in the decree.
MATTER OF ALBERT N. MOORE, AN INFANT
PETITION FOR WRIT OF MANDAMUS.
No. 17, Original. Argued March 9, 1908.-Decided April 20, 1908.
In either case, the filing by the defendant of a petition for removal, the
filing by the plaintiff after removal of an amended complaint or the giving of a stipulation for continuance, amounts to the acceptance of
the jurisdiction of the Circuit Court. A next friend may select one of several tribunals in which the infant's case
shall be tried, and may elect to accept the jurisdiction of the Federal
court to which the case may be removed. While consent cannot confer on a Federal court jurisdiction of a case of
which no Federal court would have jurisdiction, either party may waive
the objections that the case was not brought in, or removed to, the par
ticular Federal court provided by the statute. . Nothing in Ex parte Wisner, 203 U. 8. 449, changes the rule that a party
may waive the objection to the jurisdiction in respect to a particular court where diversity of citizenship actually exists.
This is an application by petitioner for a writ of mandamus to compel the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri to remand the case of this petitioner v. The Louisville and Nashville Railroad Company to the state court, from whence it came.
The facts are these: On November 16, 1906, Albert Newton Moore, an infant, over the age of fourteen years, presented his petition to the Circuit Court of the city of St. Louis, Missouri, stating that he desired to institute a suit in that court against the Louisville and Nashville Railroad Company, and praying for the appointment of a next friend, whereupon George Safford, of St. Louis, was duly appointed such next friend. Thereupon a petition was filed in said state court in the name of Moore, by his next friend, against the Louisville and Nashville Railroad Company, to recover damages for personal injuries. After service of summons, but before answer was due, the railroad company filed its application for removal to the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri. This ap-. plication for removal was based on the ground of diverse citizenship, and alleged that the plaintiff Moore was a citizen and resident of the State of Illinois; that Safford, the next friend, was a resident and citizen of the State of Missouri, and the defendant, a corporation created and existing under the laws of the State of Kentucky and a citizen and resident of that State. The petition and bond were in due form, and the case was transferred to the United States Circuit Court. Thereafter, and on March 22, 1907, the plaintiff filed in that court an amended petition. On March 25, by stipulation of the parties, the clefendant was given time to plead to the plaintiff's amended petition. Three or four times thereafter stipu
Argument for Petitioner.
lations for continuances were entered into by the counsel for both sides. At the September term, 1907, a motion to remand, made by the plaintiff, was overruled, and a subsequent application to reconsider this ruling was also overruled. Thereupon this application for mandamus was presented.
Mr. Thomas T. Fauntleroy and Mr. Shepard Barclay, for petitioner, submitted:
The petition for removal discloses by affirmative facts that the case was not removable, and hence the jurisdiction of the state court was not divested, but continues. The Federal law ordains that where the foundation of jurisdiction in the Federal court rests upon diverse citizenship “suit shall be brought only in the district of the residence of either the plaintiff or the defendant.” 25 Stat. c. 366, p. 434; 4 Fed. Stats. An., p. 366.
This is a prohibition as well as an authority. It excludes (by use of the word “only) Federal jurisdiction in cases where suit is brought otherwise than as authorized, in the district of residence of either plaintiff or defendant.
When the removal petition was filed in the state court this cause was not removable on the facts therein alleged. Those facts made a clear showing that the cause was not subject to be removedl. Hence the jurisdiction of the state court was not divested. It continues, despite the filing of the insufficient and totally deficient petition for removal. Crehore v. Ohio &c. Ry., 131 U. S. 244; Ayres v. Wiswall, 112 U. S. 190, 191; Young v. Parker, 132 U. S. 267, 271; La Confiance Comp'ie v. Hall, 137 U. S. 61; Stevens v. Nichols, 130 U. S. 230; Kellam v. Keith, 144 U. S. 568; Graves v. Corbin, 132 U. S. 571; Jackson v. Allen, 132 U. S. 34; Mattingly v. Railroad, 158 U. S. 53. • A plaintiff, by appearing in the Federal court after the removal of the cause, and obtaining leave to file an amended complaint, does not thereby waive his right to move to remand. Endy v. Ins. Co., 24 Fed. Rep. 657; State v. Potter,
16 Kansas, 80; Robinson v. Walker, 45 Missouri, 120; Moulder v. Anderson, 63 Mo. App. 39; Latham v. Edgerton, 9 Cow. 229; Cameron v. Hodges, 127 U. S. 325; Turnbull v. Ross, 141 Fed. Rep. 649; Crane Co. v. Guanica Centrale, 132 Fed. Rep. 713; Cella v. Brown, 144 Fed. Rep. 724; Mitchell Co. v. Worthington, 140 Fed. Rep. 947; Stevens v. Nichols, 130 U. S. 230; Mattingly v. Railroad, 158 U. S. 53; Graves v. Corbin, 132 U. S. 585; Merchants Co. v. Ins. Co., 151 U. S. 384; Railway v. Twitchell, 59 Fed. Rep. 727; Crasswell v. Belanger, 56 Fed. Rep. 529; MacNaughton v. Railway, 19 Fed. Rep. 881; Indiana v. Lake Erie &c. R. Co., 85 Fed. Rep. 2; Frisbie v. Chesapeake &c. R. Co., 57 Fed. Rep. 1; Southworth v. Reid, 36 Fed. Rep. 451; Bronson v. St. Croix Lumber Co., 35 Fed. Rep. 634; Indiana v. Tolleston Club, 53 Fed. Rep. 18; Wabash R. Co. v. Barbour, 73 Fed. Rep. 513; Mexican Nat. R. Co. v. Davidson, 157 U. S. 201; Ayers v. Watson, 113 V'. S. 598; Mansfield &c. R. Co. v. Swan, 111 U.S. 379; Martin v. Baltimore &c. R. Co., 151 U. S. 690; 18 Enc. Pl. & Pr. 369.
The right of removal is determined by the facts as disclosed by the removal petition, and if the latter is defective in substance (and, for stronger reason, if it affirmatively shows, as in the case at bar, that the cause is not removable), neither consent nor failure to raise the issue of jurisdiction can impart life to the attempt at removal. Baxter Co. v. Mfg. Co., 154 Fed. Rep. 992; Yellow Aster Co. v. Crane Co., 150 Fed. Rep. 580; Goldberg Co. v. Ins. Co., 152 Fed. Rep. 834; In re Hohorst, 150 U. S. 653; Cochran v. Montgomery County, 199 U.S. 260.
If it were possible for a competent party to “waive the question of jurisdiction," such a rule could not apply to the case of an infant plaintiff, whose incapacity to waive any substantial right the courts should always protect. Coal Co. v. Hays, 97 Alabama, 201 (12 So. Rep. 98); R. S. Mo., 1899, § 556; 10 Ency. Pl. & Pr., p. 613 and cases; Nagel v. Schilling, 14 Mo. App. 576; Ingersoll v. Mangam, 84 N. Y. 622; Carver v. Carver, 64 Indiana, 194; Martin v. Starr, ' 7 Indiana, 224; Gray v. Palmer, 9 California, 616; Frazier v. Pankey, 1 Swan (Tenn.),
75; Clark v. Thompson, 47 Illinois, 25; Bonnell v. Holt, 89 Illinois, 72; Dickison v. Dickison, 124 Illinois, 483; Fitch v. Cornell, 1 Sawy. (U. S.) 157;Greenman v. Harvey, 53 Illinois, 386.
The rule in Missouri on this subject is unquestionable. Hendricks v. McLean, 18 Missouri, 32; Gibson v. Chouteau, 39 Missouri, 537; Shaw v. Gregoire, 41 Missouri, 407; Railroad v. Campbell, Nelson & Co., 62 Missouri, 585; Campbell v. Laclede Gas Light Co., 84 Missouri, 352; Fischer v. Siekmann, 125 Missouri, 165; Bogart v. Bogart, 138 Missouri, 419; Wright v. Hink, 193 Missouri, 130; McMurtry v. Fairly, 194 Missouri, 502; S. C., 91 S. W. Rep. 90. .
Mr. Harold R. Small, with whom Mr. Harvey L. Christie and Mr. P. Taylor Bryan were on the brief, for respondent:
Mandamus will not serve as a writ of error to review an exercise of judicial discretion by the United States Circuit Court in determining that a cause should not be remanded to the state court, unless the Circuit Court of the United States has abused its discretion. In re Pollitz, 206 U. S. 323 (1906); Ex parte Hoard, 105 U. S. 578; Taylor's Jurisdiction and Procedure in the U.S. Sup. Ct. 316.
Where plaintiff and defendant are citizens of different States and are non-residents of the State and district in which à suit is brought in the state court and the amount involved is over $2,000, the jurisdiction of the United States Circuit Court attaches on removal thereto by defendant if a voluntary general appearance is made therein by plaintiff without objection by him that he is not a resident of the district. Whelan v. New York &c. R. Co., 35 Fed. Rep. 858; Gordon v. Longest, 16 Pet. 97; Pollard et al. v. Dwight et al., 4 Cranch, 421; Gracie v. Palmer, 8 Wheat. 699; Toland v. Sprague, 12 Pet. 300; Ex parte Schollenberger, 96 U. S. 369; Claflin v. Ins. Co., 110 U.S. 81, 88; First Nat. Bank v. Morgan, 132 U. S. 141; McCormick Co. v. Walthers, 134 U. S. 41; St. Louis &c. Ry. v. McBride, 141 U. S. 127; Empire Wire Co. v. Empire Mining Co., 150 U. S. 159; Central Trust Co. v. McGeorge, 151 U. S. 129; Mar.