Page:Federal Reporter, 1st Series, Volume 7.djvu/150

 138 FEDERAL EBPOBTEB. �f,hat act they eould come into it only on their own petition for removal. Under the second clause of section 2 of the act of 1875, a defendant, wao is entitled to remove a case under that clause, may be brought into this court after process is eerved on him in the suit, or after he appeares in it in the state court, by the removal of the suit on the petition solely of a co-def endant who is entitled to remove it. But there is nothing in either of the two cases last cited which sanctions the view that this court can proceed with this suit against the Eichmond Company, unless that company is brought into court. The state court cannot lose what jurisdiction it has acquired, nor can this court acquire any jurisdiction to determine the contre versy named in the petition, until the Eichmond Company is brought in. If it sbould now appear in this court voluntarily, either with or without any supposed service of process, there would be no difficulty about the juris- diction, be.cause, since the act of 1875, the suit is brought here on the petition of the Atlanta Company alone, to such an estent as to allow the Eichmond Company to waive every- thing else, and to complete the jurisdiction of this court by appearing in the suit in this court. But, in view of the pro- vision of section 5 of the act of 1875, that if, in any removed suit, it shall appear to the satisfaction of the circuit court, at any time after the suit has been removed, that the suit does not really and substantially involve a dispute or contro- versy properly within the jurisdiction of that court, it shall proceed no further therein, but shall dismiss the suit or re- mand it, as justice may require. This court can now, on this motion to remand, only say that, becausethe Eichmond Com- pany is not yet before this court, so as to give this court jurisdiction as to its personality, the controversy set forth in the petition, and by reason of which the removal is sought, is not properly within the jurisdiction of this court. If de- sired, however, by the Atlanta Company, a reasonable time will be allowed before remanding the cause to give an opportu- nity for the voluntary appearance of the Eichmond Company in this court. This is quite as, competent as it would be to ��� �