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should be overruled.7 A citizen of Connecticut sues in a State court of Connecticut an action of assumpsit against several non-residents and the borough of Danbury, a mu. nicipal corporation of Connecticut.A motion to remand will be denied where it appears that the corporation is in fact a sham defendant, though not made so for fraudulent purposes.
1 Bacon v. Felt, 38 Fed. Rep. 870.
§ 111 n. When State court retains jurisdiction. --The removing party is not left reinediless by a remand, since the removing order did not absolutely take away the State court's jurisdiction, but merely held it in abeyance while the cause was in the circuit court, and the State court is now bound to resume it. Although courts of the United States may dismiss or remand a cause, where a colorable assignment has been made, yet they cannot take jurisdiction because a colorable assignment has been made to prevent a removal. Protection to the defendant can be given only by the State courts. 2 Where a case is not in fact removable, the State court will retain jurisdiction even without an order of remand.3 The removal of an action against several will not be a bar to an action in the State court for the same cause against one of the defend. ants; both causes may continue to judgment. A case may be remanded after a hearing and final decree, if the order to remand is made before the close of the term, although an answer had been filed in the circuit court."
1 Birdseye v. Schaeffer, 37 Fed. Rep. 821.
Dismissal, when.—That if, in any suit commenced in a circuit court, or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act; the said circuit court shall proceed no farther therein, but shall dismiss the suit or remand it to tlie court from which it was removed, as justice may require, and shall make such order as to costs as shall be just. (Act of March 3, 1875, sec. 5.]
The last clause of this section, relating to appeals from an order dismissing or remanding a cause, renealed by sec. 6 of the Act of 1887, 24 U. S. Stats, 552; as corrected Aug. 13, 1888, 25 U. S. Stats. 433.
§ 112 a. Duty of court to dismiss cause. It is the duty of the circuit court to dismiss a suit, if it appears,
time after it is brought and before it is finalİy disposed of, that it does not involve a controversy of which it may take cognizance. If the case is not one of Federal cognizance, it may be dismissed or remanded at any stage of the proceedings. Where counsel do not take the objection that the case was removed after the term at which it could have been first tried in the State court, as required by the Act of Congress of 1875, it is the duty of the court to take such objection.3 Although the averment as to citizenship may be sufficient, yet, if it appear that that averment is untrue, it is the duty of the circuit court to dismiss the suit. The court will, on its own motion, take the objection of the want of jurisdiction in the circuit court, especially as regards citizenship.5 The petition fur the removal will be dismissed, when it
does not show that all the plaintiffs are citizens of the State in which the suit is brought. A suit will not be dismissed as to a resident defendant because it is as to a co-defendant who pleads the privilege of non residence in the district.? Under the Act of 1887, a suit brought involving a Federal question must be dismissed as to such defendants as are non-residents, the jurisdiction depending on adverse citizenship. That the parties are non-residents, and the cause of action originated beyond the limits of the State, justifies the court in refusing to entertain jurisdiction, although the action is transitory.9 Acceptance of service does not prevent a defendant from moving to dismiss the suit because brought in a district in which he does not reside. 10 Under the Acts of 1875 and 1887, where it appears even in an action of tort that a verdict of $2,000 would be excessive, the suit should be dismissed. 11 А suit which involves no controversy within its jurisdiction should not be dismissed unless the facts appearing of record create a legal certainty."
1 Morris v. Gilmer, 129 U. S. 315; Shreveport v. Cole, 129 U. S. 36.
2 Dennistoun v. Draper, 5 Blatchf. 336; Pollard v. Dwight, 8 U.S. 421; Wood v. Matthews, 2 Blatchf. 370; Murray v. Patri, 5 Blatchf. 343.
3 Keeney v. Roberts, 39 Fed. Rep. 623.
4 Anderson v. Watt, 138 U. S. 694; Nashua & L. R. Corp. v. Boston & L. R. Corp. 130 U. S. 35;; Cameron v. Hodges, 127 U. S. 322.
5 Hilton v. Dickinson, 108 U. S. 165; Morgan v. Gay, 86 U. S. 81; Cameron v. Hodges, 127 U. S. 322.
6 Pike v. Floyd, 42 Fed. Rep. 247; Thomson v. East Tennessee etc. R. Co., 38 Fed. Rep. 673.
? Bensinger S. A. C. Register Co. v. National Cash Register Co., 42 Fed. Rep. 81.
8 United States Express Co. v. Allen, 39 Fed. Rep. 712.
$ 112 b. Dismissal for want of jurisdiction. — Lack of jurisdiction of the State court from which a cause was removed is ground for dismissing the suit in the Federal court. It may be dismissed on motion. That the removal was had on application of defendant is immaterial.3 Lack of jurisdiction of a circuit court of the
United States may be brought to its attention by affidavits or depositions taken in the cause. Where a writ of replevin was inadvertently issued, the power of the court is limited to dismissing the writ. If averments making a case arising under the Constitution, laws, or treaties of the United States appear to be immaterial the circuit court acquires no jurisdiction. If the pleadings and evidence together show that the defendants are citizens of the United States and reside in the sense of having their domicile in the state of which plaintiffs are citizens, the suit must be dismissed for lack of jurisdiction. The Federal court cannot proceed unless it has jurisdiction, whatever the condition of the partits may be;' and it must determine for itself the question of jurisdiction." Under section 5 of the Act of March 3, 1875 (18 Stat. 470), the United States Supreme Court will take notice of want of jurisdiction in the circuit court, although the point has not been formally raised either in the circuit court or in the Supreme Court. 10 A court will give effect to the objection of non-service of proce. s, sua sponte, without even suggestion." Where a court has no jurisdiction, it has no power to do anything but to strike the case from the docket; and an award of costs and execution is void; 12 it cannot make any order in the cause except to dismiss the suit, but may set aside orders made before the want of jurisdiction was discovered. 13 All further proceedings are void, and afford no justification, and may be rejected when collaterally drawn in question."
1 Bentlif v. London & C. Finance Corp., 44 Fed. Rep. 667.
2 Connor v. Vicksburg etc. R. Co., 36 Fed. Rep. 273; Ross (N. Y.) 38 Fed. Rep. 161.
3 Ferguson v. Ross, 38 Fed. Rep. 161.
8 McMurdy v. Conn. Gen. L. Ins. Co. 6 Ins. L. J. 666; 9 Chic. L. N.. 324; Young v. Andes Ins. Co., 1 Flippin, 509
9 Field v. Lownsdale, Deady, 288. 10 Graves v. Corbin, 132 U. S. 571; Hilton v. Dickinson, 108 U.S. 165; Morgan v. Gay, 86 U. S. 81.
11 Lewis v. Cocks, SIU. S. 466.
12 Nashville v. Cooper, 73 U.S. 247. 13 New Orleans & B. S. Mail Co. v. Fernandez, 79 U. S. 130. 14 Thompson v. Tolmie, 2 Peters, 157; Rose v. Himely, 4 Cranch, 241 Griffith v. Frazier, 8 Cranch, 9.
$ 112 c. Dismissal for collusion, and fraud. A suit for the benefit of a county, and against citizens of the State, brought in the name of an alien, so as to create a case cognizable, must be dismissed as collusive. 1 А deed for a numinal consideration for the purpose of promoting a suit was held collusive. To justify a dismissal on the ground that a note was transferred to give jurisdiction, it must appear that the object was to create a case cognizable by such court.3 Where a party having no substantial controversy with a complainant is made a defendant for the express purpose of creating a case cognizable by the Federal court, it will be dismissed. The tranfers from the real party in interest being colorable merely, the suit should be dismissed the actual plaintiff and the defendant being both residents of Maine." It may be a good defense to an action in a State court to show that a colorable assignment has been made to deprive the United States court of jurisdiction, but relief to the defendant can come only in a State court.6 Where it is not expressly alleged as required by Equity Rule 94 that “The suit is not a collusive one to confer on a court of the United States jurisdiction of a case of which it would not otherwise have cognizance,” the suit must be dismissed. If removal to another State be for the purpose of coinmitting a fraud upon the law, the court must pronounce that his removal was not with a bona fide in. tention of changing his domicile. It is only when the court can plainly see that its jurisdiction is being fraudulently invoked that it will deny an amendment increasing the ad damnum or dismiss the cause.9 Where defendants other than the one holding the legal title seek similar relief by cross-bill, the suit will not be dismissed, on the ground that they have been collusively made defendants. 10
1 Cashman v. Amador Canal etc, Co., 118 U. S. 58. 2 Little v. Giles, 118 U. S. 596. 3 Lanier v. Nash, 121 U. S. 404. 4 Sands v. Indianapolis D. & S. R. Co., 22 Ohio L. J. 199. 5 Norton v. European & N. A. Ry., 32 Fed. Rep. 865.