the same side of the controversy as an alien; and an alien are parties.12

"Whenever a personal action has been or shall be brought in any State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil officer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of process, such action may be removed into the district court of the United States in and for the district in which the defendant shall have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the provisions of the preceding section." 13

§ 537g. Removal of suits between citizens of different States. Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States have original jurisdiction under the Judicial Code, namely, in which there is a controversy between citizens of different States or a controversy between citizens of a State and foreign States, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $3,000, or in which there is a controversy between citizens of the same State claiming lands under grants of different States, can be removed into the District Court of the United States for the proper district by the defendant or defendants therein alone,1 and not by these,

Fed. Cas. No. 11,579 (3 Blatchf. 244); Hinckley v. Byrne, Fed. Cas. No. 6,510 (1 Deady, 224); Petrocokino. v. Stuart, Fed. Cas. No. 11,041; Pooley v. Luco, 72 Fed. 561; Orosco v. Gagliardo, 22 Cal. 83; Barrowcliffe v. La Caisse Generale (New York), 58 How. Prac. 131. Contra, Liverpool, B. & R. P. Nav. Co. v. Agar, 14 Fed. 615.

11 King v. Cornell, 106 U. S. 395, 27 L. ed. 60; Hervey v. Illinois Midland Ry. Co., Fed. Cas. No. 6,434 (7 Biss. 103); Watson v. Evers, 13 Fed. 194; People v. Hager, 20 Cal. 167; Davis v. Cook, 9 Nev. 134.

But see Bell v. Ohio Life Ins. Co.,
Fed. Cas. No. 1,261.

12 O'Conor v. Texas, 202 U. S. 501, 50 L. ed. 1120; affirming State v. O'Connor, 73 S. S. 1041, 96 Tex. 484; New Jersey v. Babcock, Fed. Cas. No. 10,103 (4 Wash. 344).

13 Jud. Code, § 34, 36 St. at L. 1087.

$537g. 1 Jud. Code § 28, 36 St. at L. 1087, re-enacting 24 St. at L. 552; Fletcher v. Hamlet, 116 U. S. 408, 29 L. ed. 679; Houston & T. C. R. Co. v. Shirley, 111 U. S. 358, 28 L. ed. 455; Mills v. Newell, 41 Fed. 529; supra, §§ 40-49, 18-24; infra,

unless they are non-residents of that State; 2 nor when there is no separable controversy 3 nor proof of prejudice or local influence, unless all on the side of the controversy opposite to that of the plaintiff unite in the application for a removal.5

The limitation in the bankruptcy law upon the jurisdiction of the Federal Courts over suits by the trustee does not affect the right of the defendant to remove such a suit because of a difference of citizenship.6

An assignment of a cause of action to a citizen of the same State as the defendant, although made for that purpose, will prevent the removal of a suit thereupon to the Federal Court, unless a Federal question is involved or the parties claim the same land under grants from different States; 7 but where the suit was brought against an alien by a citizen assignee of several causes of action, some of which were assigned by other aliens and the rest by citizens of the United States, the whole suit was removed.8

§ 542. But see Mutual Life Ins. Co. v. Champlin, 21 Fed. 85; Foster's Federal Judiciary Acts, 26-29.

2 Martin v. Snyder, 148 U. S. 663, 37 L. ed. 602; Wichita Nat. Bank v. Smith, C. C. A., 72 Fed. 568. It has been held that a suit is not removable when pending within a district in which the plaintiff does not reside, although he is a citizen and resident of the State, and the defendant, à citizen and resident of another State, and he sued in such district for the purpose of preventing a removal. Shawnee Nat. Bank v. Missouri, K. & T. Ry., 175 Fed. 456.

3 Infra, 541. 4 Infra, $549.

5 Fletcher v. Hamlet, 116 U. S. 408, 29 L. ed. 679; Houston & T. C. R. Co. v. Shirley, 111 U. S. 358, 28 L. ed. 455; Chicago, R. I. & Pac. Ry. Co. v. Martin, 178 U. S. 245, 44 L. ed. 1055; Huntington v. Pinney, 126 Fed. 237; Arkansas V. Sm. Co.

v. Cowenhoven, 41 Fed. 450; Thompson v. Chicago, St. P. & K. C. Ry. fo., 60 Fed. 773; Yarnell v. Felton, 102 Fed. 369; infra, § 542.

6 Ewing v. S. L. Leszynsky & Co., 236 Fed. 811.

7 Provident Sav. Life Assur. Soc. v. Ford, 114 U. S. 635, 5 Sup. Ct. 1104, 29 L. ed. 261; Oakley v. Goodnow, 118 U. S. 43, 6 Sup. Ct. 944, 30 L. ed. 61; Leather Manufacturers' Nat. Bank v. Cooper, 120 U. S. 778, 7 Sup. Ct. 777, 30 L. ed. 816; Vimont v. Chicago & N. W. Ry. Co., 64 Iowa 513, 17 N. W. 31, 21 N. W. 9; Goodnow v. Litchfield, 67 Iowa 691, 25 N. W. 882; Goodnow v. Oakley, 68 Iowa 25, 25 N. W. 912; Vimont v. Chicago & N. W. Ry. Co., 69 Iowa 296, 22 N. W. 906, 28 N. W. 612; Hawley v. Chicago, B. & Q. Ry. Co., 71 Iowa 717, 29 N. W. 787; Contra, Goodnow v. Litchfield, 47 Fed. 753. 8 Patterson v. Bucknall S. S. Line, 203 Fed. 1021.

In determining between whom the controversy exists the court is not bound by the title of the cause nor by the form of the pleadings, but will examine the record, ascertain the matter in dispute, and arrange the parties on opposite sides of the controversy according to the facts, no matter what their technical place as plaintiffs or defendants may be. The citizenship of formal parties, 10 of improper parties, or, perhaps, of unnecessary parties 12 is immaterial. It has been said that, where there is a difference of citizenship and a cause of action, it is immaterial whether a controversy exists.13

"Where a suit is now pending, or may be hereafter brought, in any State court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, any defendant, being such citizen of another State, may remove such suit into the district court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said District Court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or local influence, to remove said cause: Provided, that if it further appears that said suit can be fully and justly determined as to the other

9 Removal Cases, 100 U. S. 457, 468, 25 L. ed. 593, 597; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Judah v. Iowa B. W. Co., 32 Fed. 561; Wilson v. Oswego Tp., 151 U. S. 56, 38 L. ed. 70; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Wolcott v. Sprague, 55 Fed. 545; Scoutt v. Keck, C. C. A., 73 Fed. 900; Stockton v. Baltimore & N. Y. R. Co., 32 Fed. 9, 14; Pembina Mining Co. v. Pennsylvania, 125 U. S. 181, 186, 31 L. ed. 650, 652; Horn Silver Mining Co. v. New York State, 143 U. S. 305, 317, 36 L. ed. 164, 169; Carver v. Jarvis-Conklin

Tr. Co., 73 Fed. 9; Missouri v. Alt,
37 Fed. 302; Hunter v. Conrad, 85
Fed. 803. See Garrard v. Silver
Peak Mines, 76 Fed. 1. But see
Seddon v. Virginia, T. & C. S. R.
Co., 1 L. R. A. 108, 36 Fed. 6; Put-
nam v. Ingraham, 114 U. S. 57, 29
L. ed. 65; Sloane v. Anderson, 117
U. S. 275, 278, 29 L. ed. 899, 900;
Missouri v. New Madrid County, 73
Fed. 304; §§ 40, 41.

10 Supra, § 42.

11 Infra, §§ 539, 540.
12 Supra, § 43.

13 Memphis Sav. Bank v. Houchens, C. C. A., 115 Fed. 96. See Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403.

defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said District Court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with there

§ 537h. Effect upon removal of residence of parties. Where the jurisdiction of the Federal court is invoked because of a controversy between citizens of different States, it cannot be removed by a defendant who is a resident of the district where the suit is brought. Nor, according to the preponderance of authority, can such a suit be removed when the plaintiff is not a resident of the district. This is reasonable, for the object of the grant to the courts of the United States of jurisdiction over controversies between citizens of different States is to prevent local prejudice or influence against the defendant, which is not likely to exist when the plaintiff also is a non-resident. A New York case, based upon a close construction of the statute, holds that, when a suit is brought by an assignee in the district of his residence, but where his assignor, a citizen of the same State

14 Jud. Code, § 28, 36 St. at L. 1087, re-enacting 24 St. at L., ch. 373, p. 552. For the practice in such a case see infra, § 541.

$ 537h. 1 Martin v. Synder, 148 U. S. 663, 37 L. ed. 602; Wichita Nat. Bank v. Smith, C. C. A., 72 Fed. 568.

2 Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264; Yellow Aster Min. & Mill. Co. v. Crane Co., C. C. A., 150 Fed. 580; Goldberg, Bowen & Co. v. German Ins. Co., 152 Fed. 831; H. J. Decker, Jr., & Co. v. Southern Ry. Co., 189 Fed. 224; W. U. Tel. Co. v. Louisville & N. R. Co., 201 Fed. 932; Stewart v. Cybur Lumber Co., 211 Fed. 343; St. John v. U. S. Fidelity & Guaranty Co., 213 Fed. 685; Whitaker v. Coudon, 217 Fed. 139; Mutual Life Ins. Co. of N. Y. v. Painter, 220 Fed. 998;

Eddy v. Chicago & N. W. Ry. Co., 226 Fed. 120; Doherty et al. v. Smith, 233 Fed. 132; Peninsula Lumber Co. v. Royal Indemnity Co., 237 Fed. 297; O'Neil Ins. Co. v. Birdseye, 244 Fed. 254; Guaranty & Tr. Co. v. McCabe, C. C. A., 250 Fed. 699, certiorari denied, 247 U. S. 505, 38 Sup. Ct. 427, 62 L. ed. 1240; Boise Commercial Club v. Oregon Short Line R. Co., C. C. A., 260 Fed. 769, and cases cited. Rubber & Celluloid Harness Trimming Co. v. John L. Whiting-J. J. Adams Co., 210 Fed. 393; Louisville & Nashville R. R. Co. v. Western Union Tel. Co., 218 Fed. 91; Hohenberg & Co. v. Mobile Liners, 245 Fed. 169; James v. Amarillo Light & Power Co., 251 Fed. 337; Sanders v. W. U. Tel. Co., 261 Fed. 697; Earles v. Germain Co., 265 Fed. 715.

as the plaintiff, does not reside, a defendant who is a nonresident citizen of a different State cannot have a removal.3

The same rule seems to apply to alien defendants. By the preponderance of authority, an alien defendant cannot remove a suit when he is a resident of the district.5

When the jurisdiction is invoked because the suit arises under the Constitution or laws of the United States, a non-resident is interested quite as much as a resident defendant in having it decided by a court of the United States. The authorities are divided upon the question whether such a suit can be removed by a defendant who does not reside in the district.

§ 537i. "The proper district" for a removal. The Judicial Code, which re-enacts the previous legislation in this respect, directs that the removal be made "into the District Court of the United States for the proper district."1 According to the weight of reason and the preponderance of authority, this is the District Court of the judicial district within the boundaries of which the suit is brought in the State court.2 In the North

3 Orr v. Cincinnati, Hamilton & Dayton R. R. N. Y., Sup. Ct., Sp. Tm. per Jaycox, J., N. Y. L. J., May 27, 1914.

4 Supra, §§ 45, 537f.

5 Kamenicky v. Catterall Printing Co. (S. D. N. Y.), 188 Fed. 400 (in which the author was counsel); Odhner v. Northern Pac. Ry. Co. (S. D. N. Y.), 188 Fed. 507; Sagara v. Chicago, R. I. & P. Ry. Co, (D. Col.), 189 Fed. 220; Hall v. Great Northern Ry. Co., 197 Fed. 488; Jackson v. William Kenefick Co. (S. D. N. Y.), 233 Fed. 130. These cases follow the analogy of Ex parte Wisner, 203 U. S. 449, 51 L. ed. 264. See, also, Petrocokino v. Stuart, Fed. Cas. No. 11,041; Matter of Tobin, 214 U. S. 506, 53 L. ed. 1061. Contra, Uhle v. Burnham (S. D. N. Y.), 42 Fed. 1 (residence not shown); Stalker v. Pullman's Palace Car Co. (S. D. Cal.), 81 Fed. 989

(residence not shown). See supra, $$ 45, 537f.

6 In the following cases it has been held that a non-resident may remove such a case: Rubber & Celluloid Harness Trimming Co. v. John L. Whiting-J. J. Adams Co., D. Mass., 210 Fed. 393, a suit for an injunction against the violation of a registered trade-mark. Contra, Western Union Tel. Co. v. Louisville & N. R. Co., E. D. Tenn., N. D., 201 Fed. 932; Orr v. Baltimore & O. R. Co, 2 S. D. N. Y., 242 Fed. 608; Boise Commerce Club v. Oregon Short Line R. Co., C. C. A., 260 Fed. 769. All arising under the Interstate Commerce Laws; see supra, § 61b.

§ 5371. 1 Jud. Code, § 28, 36 St. at L. 1094.

2 Stewart v. Cybur Lumber Co., D. Ala., 11 Fed. 343; St. John v. U. S. Fidelity & Gy. Co., 213 Fed.