US SUPREME COURT DECISIONS

1. The members of a foreign corporation, when it sues or is sued in a court of the United States, are conclusively presumed to be citizens or subjects of the state or country which created it.

2. The citizenship of the parties, if it be shown by the record, need not be set out in the petition for the removal of a suit from the state court to the circuit court of the United States.

3. Upon the filing of the requisite petition and bond in a suit which is removable, the state court is absolutely divested of jurisdiction of such suit, and its subsequent orders are coram non judice unless its jurisdiction be in some form actually restored.

4. A failure to file the transcript within the time prescribed by the statute does not restore that jurisdiction, and the circuit court must determine whether, in the absence of a complete transcript or when one has not been filed in proper time, it will retain jurisdiction or dismiss the suit or remand it to the state court.

5. A party having filed his petition and bond for the removal of a suit pending in a state court, the court ruled that the suit was not removable, but should there proceed. He subsequently consented to an order requiring the issues to be heard and determined by a referee, and thenceforward, until final judgment, contested the case as well before the referee as in the courts of the state. Held:

1. That the jurisdiction of the state court was not thereby restored, and that his consent to the order of reference must be construed as merely denoting a preference for that mode of trial.

2. That his objection to the exercise of jurisdiction by the referee and the state court, after he had filed his petition and bond, added nothing to the legal strength of his position on the question of removal.

This action was commenced on the 23d of June, 1875, by Tugman against the National Steamship Company, which his complaint alleges to be "a foreign corporation, having an office or general manager and place of business in the City of New York." The summons and complaint were served on the company's agent in New York on the succeeding day. chanrobles.com-redchanrobles.com-red

Page 106 U. S. 119

On the 14th of July, 1875, the company entered its appearance, and at the same time filed a petition and bond, in proper form, for the removal of the action into the proper circuit court of the United States. The petition alleges that the plaintiff, "at the commencement of the action, was, and ever since has been, and now is, a citizen of the State of Illinois;" that

"the petitioner is a corporation created and existing under and by virtue of the laws of the United Kingdom of Great Britain and Ireland, and has its principal offices for the transaction of its business at Liverpool, in said kingdom,"

where, it is further alleged, the meetings of its stockholders and directors were held, its records kept, its authorities acted, and from which the latter issued their orders. The petition also states that the company had not designated any person or persons residing in any county of New York on whom process might be served, as prescribed in the act of the legislature of that state of April 10, 1855.

The sufficiency of the bond was not questioned, but the motion that the court proceed no further in the cause was, after argument by counsel, overruled July 21, 1875.

The company filed its answer Aug. 3, 1875. On the 17th of January, 1877, "on the consent of the parties," all the issues in the action were, by order of court, referred to Henry Nicoll, "to hear and determine the same." The parties appeared before the referee, when the company -- presenting the petition, bonds, and papers, upon which the removal of the action was theretofore asked -- contended that the state court was ousted of jurisdiction, that the referee had no power or authority to proceed therein, and that the action was in fact removed into, and was then pending in, the circuit court of the United States for the Eastern District of New York. The objection was overruled by the referee, who ordered the trial to proceed, to which decision and order the defendant's attorney duly excepted. The trial proceeded notwithstanding the company's objection.

On the 8th of June, 1877, the referee reported in favor of the plaintiff for the sum of $4,324.53. Exceptions were filed by the company, but they were overruled and judgment entered in accordance with the report on the 27th of June, 1877. chanrobles.com-redchanrobles.com-red

Page 106 U. S. 120

The company appealed to the general term of the supreme court, where the judgment was affirmed on the nineteenth day of February, 1878. Upon appeal to the Court of Appeals of the State, the judgment of the supreme court was affirmed, the court saying:

"In regard to the question raised upon the trial that this court was ousted of jurisdiction by the proceedings instituted to remove the case into the United States circuit court, we think that the petition was defective in not showing that the defendant was an alien citizen or subject of a foreign power at the time of the commencement of the action, but only when the petition was signed and sworn to. The omission referred to brings the case directly within the decision in the case of Pickner v. Phoenix Insurance Co., 65 N.Y. 195. It may also be remarked that since the order refusing to remove the case, the defendant consented to the appointment of a referee to determine the case and submitted to his jurisdiction by trying the action on the merits. It is at least questionable whether he has not thus waived his right to insist that a removal had been had."

The steamship company brought this writ of error.