Page:North Dakota Reports (vol. 1).pdf/434

 It is clear that under the terms and spirit of the enabling act an election to remain in the state forum destroys the right to request a transfer of the case. The language of the act is that “in the absence of such request such cases shall be proceeded with within the proper state courts.” § 23. The case is not to be proceeded with until such request is made, but in the absence thereof the state court is to retain jurisdiction; obviously, not during the pleasure of the parties, but thereafter throughout the entire course of the litigation. If there is “absence” of any request when any step is taken by the applicant for transfer in the state court after admission, the state court shall thereafter proceed with the case. But it is urged that to defeat a party’s right to a transfer he must proceed in the state court voluntarily, and that all the steps taken by respondent since statehood have been coerced by its opponent; that, having been successful in the court below, respondent may act on the defensive without being open to the charge of having voluntarily elected to remain in the state court. It would seem to be clear that the acts of respondent since statehood have been voluntary, so far as the tribunal in which they were to proceed is concerned. Plaintiff may have been forced to argue the defendant’s appeal in order to support the judgment rendered in favor of defendant in the district court, but it was not obliged to argue such an appeal in the state court. The question is not whether a party is obliged to take the steps which he has taken; but could he be compelled to take them in the state court? May a defendant who, after statehood, answers; who is successful on trial; who is defeated on appeal; and who finally meets with reverses in the trial court on a second trial—may he claim to have been acting under coercion through all these various stages, and that therefore he has never elected to remain in the state court? It would seem strange that a party who had the power to direct his course, and choose which line of jurisdiction he would follow, when pushed along by his antagonist should be heard to plead that his choice of tribunals was the result of coercion. If defendant’s contention is sound, then, in the case we have above supposed, federal jurisdiction might be invoked after the lapse of years, and after a long course of procedure, in