J. S. Appel Suit & Cloak Co. v. Baggott

132 F. 1005, 1904 U.S. Dist. LEXIS 184

Opinion

THOMAS, District Judge.

The plaintiff resides in the state of Colorado, Baggott resides in the state of New York, and Ryall in the state of New Jersey. Both were served with the summons and complaint in the borough of Manhattan, in the Southern District of New York. The action was removed to this court upon the petition of Ryall and the consent of Baggott. The cause of action is for libel published in the state of New York, signed by defendants under the name of “Baggott & Ryall,” in the course of business in which they were engaged as copartners.

Under the removal act, Baggott, not being a nonresident, could not remove the action to this court. Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706, 37 L. Ed. 602. The act so provides. The suit could not have been begun in the federal court against Ryall, a resident of New Jersey, by service upon him in the state of New York. Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635. Hence there can be no removal as to him. The rule would be different as to an alien. Bowers v. Atlantic, G. & P. Co. (C. C.) 104 Fed. 889; In re Hohorst, 150 U. S. 650, 14 Sup. Ct. 221, 37 L. Ed. 1211.

The action should be remanded.