Walser v. Memphis, C. & N. W. Ry. Co.

19 F. 152, 1883 U.S. App. LEXIS 2488

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: December 3, 1883
• Status: Published

Opinion

Treat, J.

A similar motion was made and decided by this court at the March term, 1881, by Judge McObaby, in which I concurred. Since .then many proceedings and orders have been im providently had. It may be that in the recent case of Barney v. Latham, 103 U. S. 205, it was supposed that opposite views to those expressed by this court had been established. It seems, however, that after the order of this court to remand the case to the state court and an appeal allowed, a subsequent order was entered vacating said appeal, and leaving open the motion to remand for further consideration. The right to vacate said appeal is questionable. Since that order, an amended bill, a demurrer, and a new motion to remand have been filed. The right to remove the cause was dependent solely upon the condition thereof at the time of the motion made in the state court; and no change of pleading or relationship of the parties, by amendments thereafter in this court, could give jurisdiction not disclosed by the original proceedings in the state court. The opinion by Judge McCkaby, in 1881, has been fully confirmed by the many decisions of the United States supreme court since rendered. It is obvious, therefore, that the cause must be remanded, and all orders made since the original order to remand vacated. ’

An order will be entered accordingly.