Page:Federal Reporter, 1st Series, Volume 6.djvu/763

 MACKAYB e. MALIiOET. '751 �theproper place to hear and determine them- vas on the trial. The same view was held by Mr. Justice Nelson in Fisk V. Union Pacific B. Co. 8 Blatchf. 24r3. �Those cases were prier to the enactment of section 5 of the act of March 3, 1875, (18 St. at Large, 472,) which provides that if, in any suit removed, it shall appear tO the satisfaction of the circuit court, at any time af ter such suit hae been removed thereto, that such suit does not really and sub- stantially involve a dispute or controversy properly witiiin the jurisdiction of the circuit court, the circuit court shall proeeed no f urther therein, but shall dismiss the suit or ro- mand it to the court from which it vras removed, as justice may require. Under this provision there is no doubt of the power of this court to remand a cause at any time before a formai trial of the pl'enary issues in it, whenever it appears that the court has no ]'urisdictiou of the suit. In fact, the statute is imperative that, vyhenever such want of jurisdiction appears, the court shall dismiss or remand the suit. But the provisions do not require the court to remand the suit unless it appears that the suit does not involv« a controversy properly within its jurisdiction. If the suit appears On the removal papers and the prier record, taken together, to be a suit properly romovable, it is not to be remanded if the ques- tion arises solely on those papers, as it does in this case. TMfa view does not affeet cases like Galvin v. Boutwell, 9 Blatchf. e70, and Heath v. Austin, 13 Blatchf. e20, where, even before the act of 1875, the question of citizenship was tried on affi- davits in this court on a motion to remand. The same thing was done after the act of 1875 in Sawyer v. Switzerland Marine Ins. Co. 14 Blatchf. 451, �It is the practice of the courts of the United States, under the act of 1875, to try the question of jurisdiction on a motion to remand, and before the plenary trial. In Gold Washing Co. V. Keyes, 96 U. S. 199, the circuit court did this and remanded the cause, and the supreme court, on a writ of error taken under section 5 of the act of 1875, affirmed the judgment of remand, on the ground that, on the pleadings in ��� �