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FRITZLEN V. BOATMEN'S BANK, 212 U. S. 364 (1909)

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U.S. Supreme Court

Fritzlen v. Boatmen's Bank, 212 U.S. 364 (1909)

Fritzlen v. Boatmen's Bank

No. 99

Argued January 28, 29, 1909

Decided February 23, 1909

212 U.S. 364


If, after an order to remand has been made, it results, from the subsequent pleadings or conduct of the parties, that the cause is removable, a second application to remove can be made, and the right to make it is not controlled by the previous remanding order; nor is the granting of the order to remove under such circumstances a refusal to give effect to such previous order to remand.

In this case, held that in an action to foreclose, where the junior encumbrancer, as plaintiff, joined the senior encumbrancer as a defendant and attacked the validity of his lien, a did the owner of the property, also a defendant, a separable controversy exited between the senior encumbrancer, on the one side, and the owner and the junior encumbrancer, on the other side, which was removable, a diverse citizenship existed when the parties were so arranged, and such removal could not be prevented either by the unnecessary joinder of the senior encumbrancer or because, prior to the filing of the reply showing the separable nature of the controversy, a remanding order had been made.

Powers v. Chesapeake & Ohio Ry. Co., 169 U. S. 92, followed as to when an application for removal is made in time.

75 Kans. 479 affirmed.

The facts are stated in the opinion.

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