Page:Federal Reporter, 1st Series, Volume 7.djvu/149

 POND V. SIBLKY. 137 �under the statuts of this state, in the state court, much less to show that any facta exist on which it can be "found" in this district, within the meaning of the act of 1875. It maj' voluntarily appear in this court, but it may not so appear, Under section 737 of the Kevised Statutes, if it should not so appear, the court may adjudicate the suit between the plaiu- tiffs and the Atlanta Company, but the decree will not con- clude or prejudice the Eichmond Company, But this is not the suit or the controversy which the complaint makes, nor is it the suit or the controversy which the petition for removal sets forthj nor is it the suit or the controversy mentioned in the removal statnte, because it is not a controversy which is to be determined at all as respects the Eichmond Company, for the reason that that corporation will not be before the court. Under all these circumstances the suit cahnot, within the meaning of section 2 of the act of 1875, be regarded as having been "pending" or "brought" against the Bichmond Company when the petition for removal was filed, because that corporation had not before that been brought before the state court, or appeared therein in the suit. �Eeference is made by the defendant to the opinion of Mr. Justice Nelson in Fisk v. U. P. R. Co. 8 Blatchf. 2e3. That case arose under the act of July 27, 1868, (15 St. at Large, 226.) The language of that statute was that any corporation or person named in it, against whom a suit was commeneed of the character specified in the act, might have such suit removed. Judge Nelson treated the statute as one to be construed as providing that any defendant in the suit might take steps to remove it, so far as he was concerned,. when he was served with process in it. �The case of Ward v. Arredondo, 1 Paine, 410, is also- referred to, where it was suggested that under the removal act of 1789, which required all the defendants to unite in remov- ing the cause, they might apply to remove at different times, as they were brought into the state court. But it Was also said, in that case, that the circuit court could not proceed in the cause until all the defendants should corne into it. Under ��� �