Mr. Rhea P. Cary for plaintiff in error. [222 U.S. 164, 165] Mr. Harry E. King for the United Realty Company and Rosewell E. messinger.
Mr. Clayton W. Everett for Charles R. Messinger.
Mr. Oliver B. Snider for Aaron Chesbrough.
Messrs. Edward H. Rhoades and Edward H. Rhoades, Jr., for John P. Freeman.
Mr. Elmer E. Davis for the Dow-Snell Company.
Mr. George A. Bassett for Clarence M. Lamb and Edward H. Thompson.
Mr. Rathbun Fuller for Mary E. Nearing.
Memorandum opinion by direction of the court. By Mr. Justice Lurton:
The single question for our consideration upon this writ of error concerns the jurisdiction of the state court to proceed with the action after one of the original defendants had filed its petition and bond for removal to the circuit court of the United States.
If, as we shall assume, there was a separable controversy and the requisite diversity of citizenship, it was the duty of the state court to accept the petition and bond and proceed no further in the case. A trial and judgment thereafter would be coram non judice, unless its jurisdiction over the cause and the parties was in some way restored. National S. S. Co. v. Tugman, 106 U.S. 118 , 27 L. ed. 87, 1 Sup. Ct. Rep. 58; Madisonville Traction [222 U.S. 164, 166] Co. v. St. Bernard Min. Co. 196 U.S. 253 , 49 L. ed. 468, 25 Sup. Ct. Rep. 251. But we are of opinion that the plaintiff in error is not in a position to now assert that the state court's subsequent exercise of jurisdiction was without authority. When the removal petition and bond was filed, the plaintiff, before any order was made in the state court or the record filed in the United States court, had an order entered in the state court, dismissing his action against the removing defendant and certain others having like ground of removal, the order reciting that in consideration of such dismissal the petition for removal was withdrawn. Thereafter the cause was proceeded with against the remaining defendants without the hint of any objection by either the plaintiff or the remaining defendants. Upon the contrary, many steps were taken and a long jury trial had, resulting in a verdict and judgment for the defendants. Not until the cause was carried to the Ohio circuit court by appeal of the plaintiff was there any objection made to the jurisdiction of the trial court.
The state court had jurisdiction over the subject-matter. It recovered jurisdiction over the remaining parties by action and conduct equivalent to a formal waiver of new process and new pleadings, or any formal remander by the United States court.
The Tugman Case, cited above, does not help the plaintiff in error. The defendant, whose right to remove had been erroneously denied, was held not to have waived his right to remove by subsequently consenting to a reference of the case to a referee, or by defending the suit both before the referee and the court, without protesting. This court said:
If, on the other hand, he had thereafter invoked the court's jurisdiction in his own behalf, he would not have been permitted later to deny it. Texas & P. R. Co. v. Eastin, 214 U.S. 153 , 53 L. ed. 946, 29 Sup. Ct. Rep. 564; Garrozi v. Dastas, 204 U.S. 64, 73 , 51 S. L. ed. 369, 376, 27 Sup. Ct. Rep. 224; Chesapeake & O. R. Co. v. McDonald, 214 U.S. 191 , 53 L. ed. 963, 29 Sup. Ct. Rep. 546. Judgment affirmed.