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PHOENIX LIFE INS. CO. V. WALRATH, 117 U. S. 365 (1886)

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U.S. Supreme Court

Phoenix Life Ins. Co. v. Walrath, 117 U.S. 365 (1886)

Phoenix Life Insurance Company v. Walrath

Submitted March 25, 1886

Decided March 29, 1886

117 U.S. 365


The right to remove a suit from a state court to a circuit court of the United States, being once lost by reason of nonuser "before or at the term at which said cause could be first tried and before the trial thereof," is not revived by a subsequent amendment of the pleadings which creates new and different issues.

This suit was commenced July 19, 1880, in the Circuit Court for Milwaukee County, Wisconsin, by the plaintiff in error against the defendant in error to recover sums of money chanroblesvirtualawlibrary

Page 117 U. S. 366

alleged to have been received by him as its agent and converted to his own use, and was put at issue August 26, 1880, by a plea of the general issue. At the trial in February, 1881, evidence offered by defendant was objected to on the ground that the defense which it disclosed should have been specially pleaded. Defendant then moved for leave to file a special plea, and the motion was denied. A verdict was then taken for plaintiff, and judgment entered, May 2, 1881, on the verdict. The supreme court of the state, on appeal, reversed the judgment in October, 1881, and remanded the cause for a new trial. The defendant in April, 1882, moved for leave to file an amended answer, which was granted, and plaintiff given time to reply to it. Pending this grant of time, plaintiff filed a petition to remove the case to the circuit court of the United States, on the ground that the petitioner

"at the date of the commencement of the above entitled action, and long prior thereto, was, and still is, a corporation organized and existing under and by virtue of the laws of the Connecticut, and that the defendant was and is a citizen of the Wisconsin."

The petition was granted and the case removed. In the circuit court of the United States, on motion of the defendant the cause was remanded to the state court. The plaintiff sued out this writ of error to review that judgment.

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