78, 24 Sup. Ct. 30, 48 L. Ed. 103), they have irrevocably consented to the jurisdiction of this court.

But the question here presented is, did the plaintiff, by seeking the state court to litigate her controversy with defendants, impliedly agree, if defendants should by seeking a removal of the controversy to this court, thereby consenting to the jurisdiction of this forum, she would also give her consent thereto? The affirmative of this proposition has been sustained by certain decisions of the federal courts. Morris v. Construction Co. (C. C.) 140 Fed. 756; In re Aspinwall (C. C.) 83 Fed. 851; and in other cases.

Again, under the authority of In re Hohorst, Petitioner, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211, had defendants, corporate citizens of a state of this country, a justiciable controversy against plaintiff sufficient in value, they might have proceeded against her in any Circuit Court of the United States in any district in which they could have procured valid personal service on her, regardless of her consent thereto. But this decision arose from the necessity of the case and the inapplicability of the present law to such a state of facts. For it is self-evident, as a nonresident alien is an inhabitant of no federal district of this country, such alien could either be brought before the Circuit Court of any district wherein personal service could be obtained on her, or she could not be required to appear before any federal court in this country, and it was not thought Congress had conferred jurisdiction on the courts of the nation over a class of controversies and excluded the courts entirely from cognizance of such class.

This construction of the judiciary act grants the same privilege to an alien to proceed against a citizen of this country as it grants to one citizen to proceed against another, and the right of a citizen to proceed against an alien in any jurisdiction in which such alien may be found. The doctrine of the Hohorst Case is, however, applicable only to that class of cases wherein an alien is defendant, not where an alien is plaintiff. As said by Mr. Justice Brown, delivering the opinion of the court in Galveston, etc., Railway Co. v. Gonzales, supra:

"Neither this case nor any other to which our attention has been called makes any distinction between cases where citizens and aliens are plaintiffs, though in the Hohorst Case, to prevent a manifest failure of justice in the inability to sue any foreign corporation whatever, it was held that where an alien corporation was defendant it might be sued in any district wherein it might be found."

The language of the judiciary act is prohibitive in terms. It reads: "No civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant. But where the jurisdiction is founded only on the fact that the action is between citizens of different states, suits shall be brought only in the district of the residence of either the plaintiff or the defendant."

It is conclusively settled by authority controlling here that a domestic corporation is both a citizen and an inhabitant of that state in which it is incorporated. Shaw v. Quincy Min. Co., 145 U. S. 414, 12 Sup. Ct. 935, 36 L. Ed. 768; Southern Pacific Co. v. Denton, supra; Galveston, etc., Railway v. Gonzales, supra. Therefore, as removing

defendants are domestic corporate citizens of the state of Illinois, Congress has expressly prohibited the process of this court from running against them to bring them in here, although they may under state laws be brought before the courts of this state, and notwithstanding the further fact that they finding a suit here pending against them, in its nature such as this court has general, original jurisdiction to consider, they may waive the personal exemption conferred on them by the act and come in and litigate here.

By the express provisions of the removal act all but a certain clearly defined class are precluded from invoking the privilege thereby conferred. And, as has been seen, it expressly limits the right of removal by any defendant to that class of cases which might have been originally brought in the court to which the cause is attempted to be removed. That is to say, as related to this present controversy, before the right of removal shall obtain to defendants at all it must appear plaintiff could have originally brought her action in this court had she so desired. As has been seen, the privilege of plaintiff to have brought her action originally in this court is coupled with a condition that defendants should consent thereto. Over this condition plaintiff has no control, and this court no power. Beyond question, had she attempted to so have done, removing defendants by the simple act of disobeying the process of this court in her cause could have forever put it beyond the power of this court to proceed with her case against them, because this court is prohibited from causing such process to issue. In view of this condition of the law, she sought the state forum where she could, under its forms, compel attendance by defendants and compliance with its mandates. Defendants being thus pursued in a forum where they must appear, and the orders of which they must obey, by the petition and bond for removal filed therein have invited plaintiff to litigate her cause with them in this forum, in which she could not have compelled their attendance. To this invitation she declines her consent, preferring, as shown by her motion to remand, to proceed with her controversy where she began it. This, I think, she may do.

It may be contended the conclusion reached will preclude the removal of any action brought by an alien in any state court into a federal court for trial. This may be conceded to be true. For, as has been so often said by the Supreme Court, construing the present judiciary act, "The whole purport and effect of that act was not to enlarge, but to restrict and distribute, jurisdiction." Shaw v. Min. Co., supra. And, as said before, Congress under constitutional power created all federal courts inferior to the Supreme Court, and conferred on such courts their jurisdiction and power. Within the constitutional limitation it may grant the exercise to such courts of just so much or so little judicial power as in its wisdom it may deem fit.

It follows, the motion to remand must be sustained. It is so ordered.

On Rehearing.

Rosenberger & Reed and Reinhardt & Schibsby, for plaintiff.

M. A. Low, O. M. Spencer, Paul E. Walker, F. P. Sebree, and Warner, Dean, McLeod & Timmonds, for defendants.

POLLOCK, District Judge. This case again comes before the court on motion for rehearing of matters decided on motion to remand to the state court. In passing on this motion for rehearing I deem it proper to state I am neither unmindful of the importance of the ruling made nor of the fact that the only known reported case decided since the opinion in Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, was announced, identical in principle and point of fact, holds to a contrary doctrine than that expressed in the opinion on the motion to remand heretofore filed in this case. I refer to Barlow v. C. & N. W. R. R. Co. (C. C.) 164 Fed. 765. However, I think it well, to bear in mind, also, in any given case, no matter how large in importance, how sweeping in result, or how lasting in consequence, unless compelled thereto by controlling decisions, there is but one result possible, that which commends itself to the intelligent judgment of the court. Such judgment may be wrong in principle or declared erroneous in law by the exercise of a reviewing power, but none the less it is the only thinkable or possible judgment which may be announced by a court of first instance.

From a careful reading and consideration of the briefs of counsel filed on this motion, I find I must overrule it, and adhere to my original opinion on the motion to remand, for the reason I still believe the original opinion states the law, and is firmly based on certain fundamental and well-settled principles announced in various decisions of the Supreme Court touching the question at issue. As was stated in the original opinion, the judicial power exercised by this court, whether it be in its nature original or such as is obtained by the exercise of the power of removal, must be limited to that granted by Congress, and no more. The acts of Congress granting judicial power to this court mean precisely what the Supreme Court by its decisions declare, for the power which made the grant and the power which construed and limited it are each in their appropriate spheres supreme.

By the decisions of that court certain propositions, to my mind determinative of this matter, are settled beyond the power of argument. to disturb. In Galveston, etc., Railway v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248, it was held an alien could not bring and maintain an action against a corporate citizen of a state of this country in a judicial district of which such corporation was not a resident or inhabitant, without consent of defendant, although the defendant in the case might undoubtedly have been proceeded against by the alien plaintiff in a state court under state laws in the judicial district wherein the action was brought; and for the very reason the action was not brought against the corporation defendant in the judicial district of which the defendant was a resident or inhabitant the judgment obtained by the plaintiff in the federal trial court was reversed. The authority of that case has not to my mind been questioned, but, on the contrary, has been many times followed by the Supreme Court. Therefore the plaintiff in this case could not have originally brought and maintained her action in this court without the consent of defendants. In Cochran v. Montgomery Co., 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182, it was expressly ruled no case

can be removed from a state court into a Circuit Court of the United States unless it be such a case as could have been originally brought by the plaintiff in such federal Circuit Court.

In Ex parte Wisner, supra, it is held, where a case is brought in a state court of a state of which neither party is a citizen, it cannot be removed into a Circuit Court of the United States sitting in such state wherein the action is brought, although both parties to the action consent thereto or take such steps in the federal court after a removal as will be construed as a waiver of objection to the jurisdiction of the court. However, the authority of that case was partly denied by the Supreme Court in the case of In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706. 52 L. Ed. 904, and it was there held, where a corporate citizen of this country is proceeded against in a state court of a state of which neither party is a citizen, and the corporate citizen removes the case into the federal Circuit Court, and the plaintiff after removal acquiesces in the jurisdiction of that court by taking such steps therein after removal as will be construed as a consent to the exercise of jurisdiction over the person in such case, the federal court, having jurisdiction over the subject-matter because of the diverse citizenship of the parties and over the person of the defendant by the act of removal taken by it, obtains full and complete jurisdiction of both the subject-matter and the parties thereto by the implied consent given by the plaintiff by the steps taken therein after removal without objection. In that case but two questions were raised for decision, as stated by Mr. Justice Brewer delivering the opinion of the court, after stating the facts, as follows:

"This brings up two questions: First, whether both parties did consent to accept the jurisdiction of the United States court; and, second, if they did, what effect such consent had upon the jurisdiction of the United States court."

It was found in that case both parties had consented to the exercise of the jurisdiction of the federal court over their controversy, and notwithstanding the doctrine of the Wisner Case, as the court had jurisdiction over the subject-matter of the controversy by reason of the diverse citizenship of the parties, the consent to the exercise of its jurisdiction over the persons of both parties made the jurisdiction of the court full and complete. However, in this case the plaintiff has given no consent to the exercise of jurisdiction by this court over her person, and has taken no step in this case since the removal taken by defendants which has not been by her expressly and intentionally opposed to the exercise of jurisdiction by this court over her person. How, then, can she be said to have given her consent, which, as has been said, is essential to the obtaining of full and complete jurisdiction over both the subject-matter and the parties to the action. She did consent to the exercise of jurisdiction by the state court in which she brought her action over both her person and her controversy, but she had no choice of forums. She could not have commenced her action in this court without consent of defendants. How it can be held her resort to a court of this state, the only one in the state to which she could resort, is tantamount to a consent to the exercise of jurisdiction over her person by this court, a court to which she could

not have resorted in the first instance of her own will, had she felt so inclined, without consent of defendants, is beyond my comprehension, and to my mind such reasoning is both illogical and unsound. It follows that the motion for rehearing will be denied.

IRVINE v. PUTNAM.

(Circuit Court, S. D. California, S. D. January 9, 1909.)

No. 1,400.

1. CORPORATIONS (§ 253*)-STOCKHOLDER'S LIABILITY-SUIT TO ENFORCE-CONCLUSIVENESS OF DECREE IN PROCEEDING AGAINST CORPORATION.

Rev. St. Ohio 1908, §§ 3260c-3260f, authorizing proceedings against a corporation where its property is insuflicient to pay a judgment recovered against it, in which its indebtedness shall be ascertained, and, if necessary, the double liability of the stockholders, imposed by section 3258, enforced by means of an assessment to be collected by a receiver and distributed by the court, contemplate as one of the ultimate objects the winding up of the affairs of the corporation as an insolvent, and in such proceeding each stockholder is represented by the corporation and is bound by the findings and decree therein, although he may be a nonresident of the state and not served with process.

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1024-1026; Dec. Dig. § 253.*

Effect of judgment against corporation in action to enforce stockholders' liability, see note to American Nat. Bank v. Supple, 52 C. C. A. 305.] 2. CORPORATIONS (§ 264*) - STATUTORY LIABILITY OF STOCKHOLDERS - ACTION TO ENFORCE-LIMITATION.

Under Rev. St. Ohio 1908, § 3260d, which authorizes the court in a creditors' suit against an insolvent corporation to adjudge the amount payable by each stockholder under the double liability provided for by section 3258, and to appoint a receiver to collect the same, who shall have authority to maintain actions therefor against stockholders in other jurisdictions, limitation does not begin to run against such an action until the entry of the decree fixing the amount of the assessment.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1090; Dec. Dig. § 264.*

Stockholders' liability to creditors in equity, see notes to Rickerson Roller-Mill Co. v. Farrell Foundry & Machine Co., 23 C. C. A. 315; Scott v. Latimer, 33 C. C. A. 23.]

At Law. On demurrer to complaint.

The complaint is as follows (omitting formal parts):

Comes now the above-named plaintiff, and, for cause of action against the defendant, alleges:

(1) That on the 224 day of August, A. D. 1895, the Columbus, Sandusky & Hocking Railroad Company was duly incorporated under the laws of the state of Ohio; that ever since said date said corporation has been, and now is, a body corporate, organized, created, and existing under and by virtue of the Constitution and laws of the state of Ohio; that said corporation is now, and at all times since its incorporation has been, a citizen and resident of the state of Ohio; that the plaintiff, Ellsworth C. Irvine, is a citizen of the state of Ohio; that the defendant, Henry W. Putnam, is a citizen of the state of California, and is a resident of the city of San Diego, in the Southern division of the Southern district of California; that the matter in controversy in this For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes