Page:Federal Reporter, 1st Series, Volume 6.djvu/668

 G 56 FEDERAL REPORTER. �shall, in ail suits removed under the provisions of this act, prooeed therein as if the suit had been originally commeneed in said circuit court, and said proceedings had been taken in such suit in said circuit court as shall have been had therein in said state court prior to its removal." The purpose of this section is, obviously, that ail proceedings after removal 'shall be as if the suit was originally brought in the United States circuit court, and ail had in the state court before removal shall stand on the same footing. Hence, vfhen the answer and counter claim were filed, February 8th, in the state court without the alleged contract in writing, the plain- tiff could have interposed a motion for dismissal ; but, as the case was removed to this court before opportunity gi'ven for such motion, his right to do so still remains. Suppose such a motion interposed here and sustained, what would be the status of the case? Under section 5 no dismissal of the case should be had, for the plaintiff would net be at fault. If the counter claim is dismissed, and the case remanded after such dismissal, what eflfect would such dismissal have, jurisdic- tionally, it being rendered by a court that had thus decided its own want of jurisdietion in the premises? The act of congress (section 5) provides that when it shall appear to the United States circuit court that the dispute is not prop- erly within its jurisdietion, it "shall proceed no further therein, but shall dismiss the suit, or remand it," etc. �Hence, it seems that the first inquiry, on proper motion, is to ascertain whether on the papers, as transmitted to this court, it will remand, sustain a motion to dismiss the coun- ter claim, or will permit the defendants here to do what should have been done in the state court. Under the later rulings of the Missouri supreme court the counter claim is subject to dismissal on motion. If such a motion is made and granted, the case will have to be remanded. The anomalous position the case will then occupy in the state court cannot be avoided. �The judgment of this court for dismissal of counter claim, if its jarisdiotion is to be thus determined, may or may not prevent the state court from allowing the same to be re-in- ��� �