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IN RE MOORE, 209 U. S. 490 (1908)

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U.S. Supreme Court

In re Moore, 209 U.S. 490 (1908)

In re Moore

No. 17, Original

Argued March 9, 1908

Decided April 20, 1908

209 U.S. 490


In either case, the filing by the defendant of a petition for removal, the filing by the plaintiff after removal of an amended complaint, or the giving of a stipulation for continuance amounts to the acceptance of the jurisdiction of the Circuit Court.

A next friend may select one of several tribunals in which the infant's case shall be tried, and may elect to accept the jurisdiction of the federal court to which the case may be removed.

While consent cannot confer on a federal court jurisdiction of a case of which no federal court would have jurisdiction, either party may waive chanroblesvirtualawlibrary

Page 209 U. S. 491

the objections that the case was not brought in, or removed to, the particular federal court provided by the statute,

Nothing in Ex parte Wisner, 203 U. S. 449, changes the rule that a party may waive the objection to the jurisdiction in respect to a particular court where diversity of citizenship actually exists.

This is an application by petitioner for a writ of mandamus to compel the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri to remand the case of this petitioner v. The Louisville & Nashville Railroad Company to the state court from whence it came.

The facts are these: on November 16, 1906, Albert Newton Moore, an infant over the age of fourteen years, presented his petition to the Circuit Court of the City of St. Louis, Missouri, stating that he desired to institute a suit in that court against the Louisville & Nashville Railroad Company, and praying for the appointment of a next friend; whereupon George Safford, of St. Louis, was duly appointed such next friend. Thereupon a petition was filed in said state court in the name of Moore, by his next friend, against the Louisville & Nashville Railroad Company to recover damages for personal injuries. After service of summons, but before answer was due, the railroad company filed its application for removal to the Circuit Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri. This application for removal was based on the ground of diverse citizenship, and alleged that the plaintiff Moore was a citizen and resident of the State of Illinois; that Safford, the next friend, was a resident and citizen of the State of Missouri, and the defendant, a corporation created and existing under the laws of the State of Kentucky, and a citizen and resident of that state. The petition and bond were in due form, and the case was transferred to the United States circuit court. Thereafter, and on March 22, 1907, the plaintiff filed in that court an amended petition. On March 25, by stipulation of the parties, the defendant was given time to plead to the plaintiff's amended petition. Three or four times thereafter, stipulations chanroblesvirtualawlibrary

Page 209 U. S. 492

for continuances were entered into by the counsel for both sides. At the September term, 1907, a motion to remand, made by the plaintiff, was overruled, and a subsequent application to reconsider this ruling was also overruled. Thereupon this application for mandamus was presented. chanroblesvirtualawlibrary

Page 209 U. S. 495

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