Page:United States Reports, Volume 209.djvu/518

 492 OCTOBER TERM i907. Argument for P2 'ta/on. 209 U. 8. lations for continuances were entered into by the counsel for both sides. At the September term, 1907, a motion to re- mand, made by the plaintiff, was overruled, and a subsequent application to reconsider this ruling was also overruled. There- upon this application for mgndamus was presented. Mr. Thomas T. Fauntleroy and lr. Shepard Barclay, for petitioner, submitted: The petition for removal discloses by affirmative facts that the case was not removable, and hence the jurisdiction of the state court was not divested, but continues. The Federal law ordains that where the foundation of jurisdiction in the Fed- eral court rests upon diverse citizenship "suit shall be brought only in the district of the residence of either the plaintiff or the defendant." 25 Stat. c. 366, p. 434; 4 Fed. Stat. An., p. 366. This is a prohibition as well as an authority. It excludes (by use of the word "only ") Federal jurisdiction in cases where suit is brought otherwise than as authorized, in the district of residence �ither plaintiff or defendant. When the removal ---'tition was filed in the state court this cause was not removable on the facts therein alleged. Those facts made a clear showing that the cause was not sub- ject to be removed. Hence the jurisdiction of the state court was not divested. It continues, despite the filing of the in- sufficient and totally deficient petition for rem/val. Crehore v. Ohio &c. Ry., 131 U.S. 244; Ayres v. Wiswall, 112 U.S. 190, 191; Youj v. Parker, 132 U.S. 267, 271; La Confiance Comp'ie v. Hall, 137 U.S. 61; Stevens v. Nichols, 130 U.S. 230; Kellam v. Keith, 144 U.S. 568; Graves v. Corbin, 132' U.S. 571; Jackson v. Allen, 132 U.S. 34; Matingly �. Rail- road, 158 U.S. 53. �A plaintiff, by appearing in the Federal court after the re- moval of the causc, .and obtaining leave to file an amended complaint, does not thereby waive his right to move to re- wand. Endy v. Ins. Co., 24 Fed. Rep. 657; Sta v. Potter,

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