
    Railway v. Stringer.
    1. The several rulings in the case of the Baltimore and Ohio Railroad Co. v. Cary, 28 Ohio St. 208, are reaffirmed.
    2. Where, in an action pending in a state court, the petition of the defendant for the transfer of the case to a Circuit Oourt of the United States-is improperly overruled, such defendant is not bound, in order to preserve his right of removal, to disregard the overruling of his application, and proceed to perfect the transfer of the case; but may, without, abandoning such right, remain in the state court, and prevent, if possible, the prejudicial effect of its erroneous ruling, by all the means-authorized by the laws of the state.
    Error to the District Court of Ashland county.
    On the 2d day of June, 1870, the defendant in error filed his petition in the Court of Common Pleas of Ash-land county, against the Erie Railway Company, to recover damages for being wrongfully ejected from a passenger train by the conductor of the defendants’ train. He claimed damages in the sum of $5,000. Process was issued and duly served upon one of the company’s station agents. On the 5th day of September the plaintiff- in error, being-a corporation created and organized under the laws of the-State of New York, filed its petition, in the ordinary form,, to remove the case for trial into the Circuit Court of the-United States, and at the same time tendered a bond, iii accordance with the act of congress.
    The defendant in error filed an answer to this petition,, on the 12th day of September, which is as follows:
    “ Now comes E. T. Stringer, and for answer to the petition filed by the defendant to remove this case from this* couft to the next Circuit Court of the United States within and for the Northern District of Ohio, says that it is true,, as stated in said petition, that the said Erie Railway Company were, at the time of the commencement this action,, a corporation organized and doing business under the laws of the State of Hew York, and that the matter in dispute-between said Erie Railway Company and the said E. T. .Stringer, exceeds the sum of $500, exclusive of costs.”
    Said E. T. Stringer, further answering said petition, says: “ That the Erie Railway Company is a company of another state than Ohio, to wit, of the State of New York, and that on the-day of-, a. d. 1870, said Erie Railway •Company did lease from the-Atlantic and Great Western Railway Company the exclusive right to the use and control of said road for the term of--years from and after the making of said lease; that a portion of the said Atlantic and Great Western Railway, so leased to the said Erie Railway Company as aforesaid, is in the State of ■Ohio.”
    And, further answering, he says : “ That at the time of the committing of the grievances complained of by him in his petition filed in this case, and for which he has brought ■suit, the said Erie Railway Company were the lessees of the Atlantic and Great Western Railway Company, and as ■such lessees waived their right to remove this cause from this court, as prayed for in said petition.”
    To this answer, the plaintiff in error replied on the same •day,-as follows:
    “And now comes the said Erie Railway Company, and for replication to the answer of the said E. T. Stringer .says: It ought not to be barred of its right to remove said action to the Circuit Court of the United States, as prayed for in its said petition, because it says that it does not run .and operate said Atlantic and Great Western Railroad under the lease from the said Atlantic and Great Western Railroad Company, such as is contemplated by the said -statute, but under a permission or lease made and given by Reuben Hitchcock, a receiver of the said Atlantic and Great Western Railroad Company, appointed by the Court ■of Common Pleas of Summit county, Ohio, and under the .authority of the said last-named court, during the pendency of a certain action therein pending, a copy of which lease or permit is hereto attached, marked ‘A/ and made a part hereof; that it runs and operates said railroad solely under and by virtue of said instrument, and not otherwise ; that it in no manner, by the tenor of said instrument, waived its right to have said action removed, as prayed for, nor that it in any manner waived or lost its right under the-lease to remove said action, and it prays as in said petition.”
    The lease referred to, attached to this reply, bears date February 24, 1870, and is a contract between Reuben Hitchcock, as the receiver of the Atlantic and Great Western Railroad Company, setting forth that it is made in-pursuance of an order of the Court of Common Pleas of Summit county, Ohio, and an order of the Supreme Courts-of the States of New York and of Pennsylvania. .The lease, by its terms, is to continue through the receivership of said Hitchcock, the lessor, unless sooner put an end to by order of the court, upon cause shown, and by the terms-of the lease the Erie Railroad Company, is to maintain the-road in good order, and operate it for seventy per cent, of' the gross earnings thereof.
    At the October term of 1870, the cause came on to be-heard upon the petition of the,Erie Railway Company to remove the action to the circuit court, and the following is the journal entry of the decision of the court:
    “ This case came on to be heard upon a petition, answer, reply, and exhibits, on consideration whereof, the court find that the petitioner is a citizen of the State of New York, that the said E. T. Stringer is a citizen of the State of Ohio ;. that the amount in controversy exceeds $500, exclusive of costs; that the said Atlantic and Great Western Railway Company is an Ohio corporation, and railroad in the State of Ohio, and that the petitioner is in possession of and running and.operating said Atlantic and Great Western Railroad under the lease or instrument attached to the replication ; and therefore the court hold and adjudge that, by virtue of the act of the legislature of Ohio, passed March 19, 1869, the petitioner waived its right to remove said cause to the Circuit Court of the United States, and refused to allow the prayer of the petitioner, and ordered the said petition to be dismissed, to which riding of the court the said Erie Railway Company excepted.”
    Afterward, upon the 9th day of November, 1870, and after the overruling of its petition for removal, the Erie Railway Company filed, under protest, its answer to the petition of the defendant in error against it, to which the defendant in error replied, and the issue thus made up between the parties was twice tried by a jury, the plaintiff in error having demanded a second trial under the statute.
    On the second trial, at the March term, 1871, the jury rendered a verdict in favor of the plaintiff’ below.
    A motion was made to set aside the verdict, which was overruled by the cdurt, and judgment was entered against the plaintiff in error. A bill of exceptions was taken upon the trial, and the evidence is set forth in the record.
    A petition in error was filed in the district court by the plaintiff in error, and the judgment of the court of common pleas was affirmed. A petition in error has been filed in this court to reverse the judgment of the district court and court of common pleas.
    Among the errors assigned, both in the -district court and here, the plaintiff’ in error alleges that the court of common pleas erred in overruling its petition for removal, and in proceeding with the action after the filing of such petition.
    
      S. Burke, for plaintiff in error:
    On the subject of removal from a state to a United States court, see Insurance Co. v. Morse, 29 Wall. 445; Railroad Co. v. Cary, 28 Ohio St. 208. As to waiver, the common pleas lost all jurisdiction in the case after the petition to remove was filed, and its subsequent acts were void. 19 Wall. 214; 20 Wall. 445.
    
      John McSweeney, for defendant in error.
   Scott, J.

The plaintiff in error is a corporation created solely by the State of New York, and is therefore to be regarded as a citizen of that state. And the fact that it is operating a railroad of another corporation, part of which lies within this state,- under a lease from the receiver of the latter corporation, does not give it the character of an Ohio corporation, or affect its status as a citizen of New York. It was so held by this commission in the case of the B. & O. R. R. Co. v. Cary, 28 Ohio St. 208. And we see no reason to doubt the correctness of the views there expressed, and do not hesitate to reaffirm the doctrine of that case. Indeed, it would not be otherwise, even if the plaintiff in error were the absolute purchaser of the property and franchises which it is now operating and using as a lessee. State v. Sherman, 22 Ohio St. 411. The laws of this state which authorize foreign corporations to make contracts and transact business within their appropriate spheres of action, in this state, do not purport to create domestic corporations, but merely to permit and regulate the action within this state, of existing foreign corporations.

The plaintiff in error, then, being sued by a citizen of this state, in the Court of Common Pleas of Ashland county, had a right, as a citizen of another state (the amount in controversy being more than $500), to ask for the removal of the case into the Circuit Court of the United States. Such right is clearly conferred by the judiciary act of congress of 1789. Plaintiff in error, in due time, exercised this right, by petitioning, in due foi-m, for such removal, and complying in all respects with .the requirements of the act of congress in that behalf. The court of common pleas overruled the application for removal, on the sole ground that, by virtue of the act of the legislature of Ohio, passed March 19, 1869, the petitioner had waived its right to such removal. The statutory provision referred to is as follows: “ Provided that it shall be regarded as one of the conditions upon which a railroad company of another state may lease or purchase a railroad, the whole or any part of which is in this state, or make any arrangement for operating the same, under'the provisions of this section, that such railroad company of another- state thereby waives the right to remove any case from any of the courts of this state to any <of the courts of the United States, or to bring a suit in any of the courts of the United States against any citizen of this-.state; and a violation of such condition shall operate as a forfeiture of all rights acquired under such lease, purchase, ■or arrangement.” 66 Ohio L. 33.

Was the court of common pleas justified, by this enactment of the state legislature, in refusing the request for removal, and holding that the right of removal had been waived ?

• The power of a state legislature to require a foreign corporation to waive or forego the exercise of such right of removal as a condition on which it is permitted to do business in the state, has been expressly denied by the Supreme Court of the United States. That tribunal of last resort in the determination of the question, holds such state legislation to be in conflict with the constitution and laws of ^he United States. Home Ins. Co. v. Morse, 20 Wall. 445; reaffirmed in Doyle v. Cont. Ins. Co., 4 Otto, 535.

And, with proper deference, we have followed and conformed to those decisions in the cases of the Assurance Co. v. Pierce, 27 Ohio St. 155, and B. & O. R. R. Co. v. Cary, supra.

In conformity with these precedents, it must be held that -the court of common pleas erred in finding and ruling that the plaintiff in error had waived its light of removal in virtue of the state enactment on that subject.

Nor did the plaintiff in error, defendant in the court below, by proceeding in the cause under protest, after its application for removal had been overruled, waive, or in any way lose, the right to call in question the further jurisdiction of the court of common pleas. Hadley v. Dunlap, 10 Ohio St. 1.

A proper case having been made by defendant below for the removal of the cause, the court had no discretion in the premises. Its imperative duty was “ to accept the surety and proceed no further in the cause against the petitioner.” It had no longer any rightful jurisdiction of the cause. Gordon v. Longest, 16 Peters, 97.

And, so long as the plaintiff in error continued to stand upon and assert its right of removal, and declined to recognize the rightfulness of the jurisdiction thereafter improperly assumed, all the subsequent orders and judgments of the court, made and entered in the exercise of such assumed jurisdiction, would be utterly invalid as against the plaintiff in error.

After the overruling of the application for removal, the defendant below submitted to the further jurisdiction of the court of common pleas involuntarily and under protest. And, after final judgment in that court, it declined to waive- or abandon its rights in that behalf; and, on the contrary, continued their assertion, by seeking the reversal of such judgment in the district court, on the very ground of error in refusing to grant its application for removal.

And the district court having affirmed the judgment,, plaintiff in error is now here, still demanding a reversal on the same ground. There has, at no time, been an acquiescence, on its part, in the exercise of the jurisdiction wrongfully assumed by the court of common pleas.

But defendant in error now alleges that plaintiff in error failed and neglected to take .the necessary steps to effect and perfect the removal of the cause to the proper Circuit Court of the United States, after the overruling of its application for removal; and it is claimed that such failure and neglect, taken in connection with the fact of its remaining in the court of common pleas, though under protest, and demanding and exercising in that court its statutory right to a second trial, constitute a waiver of its right to have the cause transferred to the circuit court.

¥e know of no case in which it has ever been held that when a petition for removal has been improperly denied,, the petitioner is bound, in order to preserve his right of removal, wholly to disregard such denial of his right, and seek an immediate remedy through the action of the courts-of the United States. On the contrary, a defendant in a state court may, without prejudiee to his right-, prevent the injurious effect of its denial, if he can, by all the means. authorized by the laws of the state. And when these-means are exhausted, without effect, and his right has been denied by the highest tribunal of the state, he may then appeal, by writ of error, to the Supreme Court of the United States, the paramount and final arbiter of the question. This was the very course adopted in the case of Gordon v. Longest, supra. The idea does not appear to-have occurred to either court or counsel in that case, that the plaintiff' in error had lost his right to have the case-transferred, by going to a trial in the state court of original jurisdiction, or by prosecuting a writ of error in the court of appeals of the state to reverse the judgment rendered against him. The Supreme Court of the United States-said that the defendant might have pursued a more summary remedy, but the cause having come into that court through the supreme court of the state, the judgment of affirmance by that court was reversed, and the cause remanded with instructions that it should be transmitted to-the court in which it originated, where an allowance of the petition for removal was directed to be entered nunc pm tunc. And in Hadley v. Dunlap, supra, where the defendant’s application for removal was improperly refused by the court of common pleas, and he thereupon proceeded to trial, and then took an appeal to the district court from the decree rendered against him, and in the latter court renewed his application for a transfer of the case, the question made by the renewed application was reserved for the determination of the supreme court. It was conceded by the learned counsel for complainants in that case, that if the application for removal should have been granted by the court of common pleas, the defendant had not lost the right to demand such removal, by the trial in the court below, and the appeal of the case by the defendant. The court was of the same opinion, and ordered the case to be -certified to the proper circuit court. In neither of these cases had the petitioner taken any steps, after the overruling of his petition, to effect an actual transfer of the case.

In the case of Hatch v. The Ch. R. I. & Pacific R. R. Co., ■6 Blatch. C. C. 105, it is said by Judge Blatchford: “ The right of the defendant to a removal is not dependent on the question whether the state court does or does not make .an order for the removal. If it were so dependent, the refusal of the state court in a proper case to make such an ■order would make it impossible for the defendant to secure the removal except by carrying the suit through the state tribunals, and then carrying it from the highest state tribunal to the Supreme Court of the United States, under the 25th section of the judiciary act of 1789. A defendant is not, however, where a state court is improperly proceeding in a cause, in violation of the 12th section of the act of 1789, restricted to such mode of relief. Where the right to remove a cause is complete, the power of the state court, in respect to the cause, is at an end, and the defendant is not obliged to follow the cause further in any state court, either of original or appellate jurisdiction. Kanause v. Martin, 15 Howard, 198. If he does all that is necessary to secure a removal, then, whether the state court makes an order of removal or not, he can perfect the removal by entering in this court, at the proper time, copies •of the proper papers, and his appearance, and special bail if necessary. When that is done, the cause will .proceed in this court.”

This language clearly implies, that whilst a defendant may disregard the refusal of the state court to allow the removal, and may perfect such removal without an order of allowance, yet that he is not bound to adopt this summary mode of effecting a transfer, and his failure to do so is no waiver of his right to call in question the continuing jurisdiction of the state court.

We find it unnecessary to consider the other errors assigned in the case. The judgments of both the courts below will be reversed, and the cause be remanded to the court of common pleas, with instructions to certify the case-to the proper Circuit Court of the United States.

Johnson, C. J.,

dissenting. I most respectfully dissent, from the opinion just announced on two grounds.

1. I do not think the plaintiff in error, was a citizen of another state, and as such entitled to a removal to the Circuit Court of the United States.

Although the Erie Railway Company was chartered by the State of New York, and is, as to all causes of action growing out of the exercise of all corporate powers conferred by that state, “ a citizen of another state,” for the purposes of a removal, yet, as the lessee of this road and franchises-of the Atlantic and Great Western Railroad Company, an Ohio corporation, and as to causes of action growing out of the exercise of corporate powers directly derived from the Ohio laws, under said lease, I think it stands in the shoes-of the lessor.

The reasons for this conclusion are given in my dissent in the B. & O. R. R. Co. v. Gary, 28 Ohio St. 216, and need not be repeated.

Since that dissent was written, the Court of Appeals of Virginia have unanimously affirmed the doctrine there-claimed, and have indorsed that dissent with their approval.

That court holds : That “ wffiere a railway company, incorporated by another state, leases a railroad lying in this-state, and operates it as owner, and an injury occurs on said road, the person having a right of action for such injury may sue in the courts of this state, and such company has no right to remove the suit to the federal court. B.

O. R. R. Co. v. Wightman (Va. L. J., p. 175, December, 1877; see also McGregor v. Erie R. W. Co. 35 N. J. (6 Vroom, 115.)

2. The second ground of dissent is, that the record shows-an abandonment of the purpose to remove the cause, and. a consent of the company to again submit the cause to the-state court.

The record shows that, after the petition and bond were-filed, the company utterly failed and neglected to perfect Hie removal to the circuit court, by filing copies of the papers, as required by act of congress ; and after the time had ■elapsed for so doing, waived its right to such removal by a trial of the case without objection.

That a party possesses the power to abandon his purpose to remove his cause, after petition and bond filed, either by .a withdrawal of the papers filed for that purpose, or otherwise, can not be successfully disputed.

That he possesses equal power to waive his' right in an .action pending, as well after he has filed his petition and "bond for a removal as before, seems to me to be too clear for argument.

It is a personal right, which may be waived as each case .arises, at the option of the non-resident citizen.

This was expressly decided in Insurance Company v. Morse, 20 Wall. 451, where it was held that a general waiver :in advance, by a citizen of another state, of his right of removal was void; yet “ in a civil case he may submit his particular suit by his own consent to an arbitration, •or to the decision of a siugle judge. So he may omit to-•exercise his right to remove his suit to a federal tribunal .as often as he sees fit in each recurring case. In these aspects any citizen may, no doubt, waive the rights to which 'he is entitled.”

In Home Ins. Co. v. Curtis, 32 Mich. 402, the defendant, .■a foreign corporation, on the 20th of December, 1873, filed ■.a petition and bond fora removal in proper form, but made no motion for a removal, nor called the attention of the •court to the fact. November 24, 1874, the parties went to trial without objection, and without questioning the jurisdiction of the state court. It was held, all the judges concurring, that “ whatever rights the company may have had upon the filing of the bond and petition, it could waive, and it certainly, under the circum.•stances of this case, must be considered as having waived them.”

“ The company could not go to trial upon the merits, take its chances upon the result, and afterward question the jurisdiction of the court.”

So in The Hanover Nat. Bank v. Smith, 13 Blackford, it was expressly held that a party may waive the right of removal in a particular suit, either by agreement or by conduct, which is equivalent to a waiver.

That a party can waive his right to a removal, as well ■after as before the filing of his petition and bond, has been settled by the unanimous decision of this court in the case of Pollock v. Cohen, in which the opinion is now being prepared, and will soon be reported.

In that case, the plaintiff, after his petition and bond in ■due form had been filed, his motion overruled, and his exception entered, proceeded to trial without further objection, which resulted in a verdict and judgment against him.

He took the case on error to the district court, but, in assigning his errors, omitte<l to assign the overruling of the ■motion to remove as error. On error to this court, it is held, that by his omission he waived the error, and must be deemed to have waived his right of removal.

As the facts in the case at bar make a much stronger case •of waiver than that of Pollock v. Cohen, I am unable to see how the two cases can be reconciled. That there was a waiver in this case, and a full consent to a final trial in the common pleas, is conclusively shown by the record. The notion was commenced June 2, 1870. The petition and bond for removal were filed September 5, 1870.

By the weight of authority no action or order of the state court is required to perfect his right to a removal, and without such action the company might have filed the transcript in the circuit court, and thus perfected a transfer of the case. It could have done this, even if the court had refused to order a removal.

At the October term, 1870, the order of-removal was refused, and exception was noted.

The bond which was filed with the petition, September 5th, was conditioned that the company would, on or before the first ■ day of the next session of the circuit court, file therein copies of the papers, as required by the act of congress.

The next session of the Circuit Court for the Northern District of Ohio commenced on the 1st Tuesday of October, the next on the 1st Tuesday of January, and the next on the first Tuesday of April. The case was finally tried April 26, 1871, so that three terms had passed.

November 9, 1870, an answer was filed, under protest, and issue joined.

At the December term, 1870, without objection, the company, being represented by counsel, and defending, the case was tried to a jury resulting in a verdict and judgment for plaintiff.

The defendant demanded and was allowed a second trial under the.statute upon giving the required undertaking.

This was given January 17, 1871, and the case was again-placed on the trial docket.

At the March term, 1871, to wit, April 26, 1871, which was more than seven months after petition for removal was-filed, and after three next sessions of the circuit court had commenced, without the transcript and copies being filed in the-circuit court, the case was again tried, without objection,, the defendant being present and defending, which resulted in a second judgment for plaintiff.

A motion for a new trial was made on several grounds,. but neither in that motion, nor in arrest of judgment, was any objection made to the jurisdiction of the court.

The motion was overruled, and a bill of exceptions taken on the causes assigned in the motion, but no motion in arrest of judgment was filed.

Error was prosecuted in the district court, where one of the causes assigned was that the common pleas erred in refusing to grant a removal.

• Since the case came into this court, the defendant in error has filed an answer, showing that no papers were- ■ ever filed in the Circuit Court of the United States.

Here we have unmistakable evidence of waiver: The time for transfer had elapsed, when the second trial was obtained at the request of the company. The condition of the bond it had given had been broken by neglect or failure, intentional as we must infer, to perfect the transfer.

Until the papers were filed in the circuit court, that court had no jurisdiction, except by certiorari, or other process, on motion of the company to compel the clerk of the common pleas to certify up the papers.

The case was not then in the circuit court. Its jurisdiction had not attached. The company had abandoned, for the time being at least, the intention to remove, and had concluded to take its chances in the state court. As was said in 32 Michigan, before cited, it could not “ take its chances on the result and afterward question the jurisdiction.”

The act of congress provides that, after petition and bond are filed, the state court can proceed no further in the cause.

This is a provision in favor of the party seeking the removal. It is personal to him, and does not divest the state court of jurisdiction over the subject-matter, but only over the person at his election.

It is said that, after petition and bond filed, all further proceedings of the state court are coram non judice and void. Numerous decisions may be cited to this effect. Is it true, in au unqualified sense ?

The opinion of the majority concedes that it is not, when stress is laid on the fact that the company saved its rights by answering under protest, and by assigning for error in the district court the order of the common pl4as refusing a removal. If all subsequent proceedings were coram non judice, and void, no exception is necessary. If the court has no further power, and if, as some of the dicta are, that “ consent can not give jurisdiction,” then all further proceedings are void, whether under protest, or objection, or by consent. The court had jurisdiction over the subject matter. 'It is not within the power of congress to divest it of this, but only of jurisdiction over the person, and that only at his option. Had the company complied with the act of congress, and filed copies of the papers in the circuit, I concede the state court would have been completely ousted of all jurisdiction. Until that was done the jurisdiction of the circuit court did not attach. That is conceded.

Rut, according to the logic of the majority, the case is out of the state court, but notin the circuit court! Where is it?

I concede also, that if a party, after removal is refused, stands on his rights, and continues to contest the case in the state court, and does not waive the question of jurisdiction, hte may, after trial and final judgment, prosecute error on that ground. In such case he can have ample protection — either the state or federal courts. What I deny is, that he can speculate on his chances, after filing his petition and bond, by going to trial without objection, after he has failed to transfer the case, and if he gets defeated, then object to the jurisdiction of the court; but if he succeeds, insist on such jurisdiction.

To have the benefit of the act of congress he should comply with its provisions, as he is free to do, whatever the state court does, and in defiance of any order it may make.

Much stress is laid on certain decisions, where the point now under discussion was not raised or considered, as to the effect, that after petition and bond for a removal have been filed, all further proceedings are coram judice, and, as is said here, “ utterly invalid.”

While this may be, and probably is so, where a party stands on his rights, and complies with the conditions prescribed by the act of congress, it can not be true in case of a waiver of the right to remove.

The case of Hadley v. Dunlap, 10 Ohio St. 1, is a unanimous decision of the supreme court directly in conflict with this theory. In that case, the petition and bond for a removal was filed by the defendant,’ and the motion for such removal was overruled. After this, he answered to the merits reserving his right of removal. Upon final trial judgment was rendered on the merits, against the defendant. He áppealed to the district court, and there renewed his motion for a removal, and the whole ease was reserved for decision in the supreme court.

The syllabus, on that point is: “ Where an .application for the removal of a cause has been improperly overruled by the court of common pleas, such error does not affect the jurisdiction of the court of common pitas so as to render its judgment in the case void. But the application, if renewed in the district court upon appeal, should be granted.”

In considering this point, the learned judge who delivered the opinion (tícott, J.) vigorously combats the doctrine laid down in Gordon v. Longest, 16 Peters, 97 (much relied on in this case), “ that every step subsequently taken in the exercise of jurisdiction is coram nonjudice.” He says: “If we are to understand from this expression that where a state court erroneously declines to certify a cause, and proceeds to trial and final judgment therein, such judgment is not merely voidable for error, but absolutely void for -want of jurisdiction, it would seem to follow7 that no attempted appeal from such void judgment could confer jurisdiction on the district court, and for w7ant thereof we would only direct the case to be stricken from the docket. . . . But as the court of common pleas had unquestioned jurisdiction, both of the parties and the subject-matter of this controversy, prior to and at the time when the defendants moved the court that it might certify it to the federal court, we do not think that an error of judgment in overruling the motion could oust the jurisdiction of the court.”

Again, “ Full jurisdiction having once attached, it must be held to continue until the case is disposed'of, either by certificate or final judgment or decree, however erroneously it may have been exercised.”

This is an emphatic authority that such subsequent proceedings by the state court are merely voidable, and not “ utterly invalid.”

In Eppinger v. Insurance Co., 4 Am. Law Record, 585, the view now contended for was directly affirmed.

That was a decision of Judge Welker (concurred in, it is said, by Justice Swayne), in the Circuit Court for the Northern District of Ohio. Two efforts at removal were made. Of. the first it is said, speaking of the effect of a failure to file copies of the papers in the circuit court: “It would seem from the fact that the'defendant, after having filed the first petition for removal, failed to file copies of the process, etc., in this court, and filed an answer in the state court, and then went to trial on the issue made, as well as the filing of a subsequent petition, affidavit, etc., for removal, in 1874, that it had waived any right to file the 'papers under that petition.”

The second petition for removal was filed February 23, 1874. The first day of the next session of the circuit court was April 7,1874, and copies of the proper papers were not filed until August 26, 1875. After this • petition was filed, and the transfer refused by the state court, the parties proceeded to trial, and judgment was rendered on a verdict against the party seeking a removal. On error to the district court, this judgment was reversed, and then the common pleas granted the order for removal, after which copies of the proper papers were filed in the circuit court. On a motion in the circuit court to dismiss the action, Judge Welker held that it was the duty of the party to comply with the act of'congress, by filing such papers, regardless of the action of the state court: and, by the failure to file the papers in time, the circuit court did not obtain jurisdiction, and therefore struck the case from the docket.

Here the "court of common pleas, as in the case at bar, refused to order a removal, and proceeded to trial and final judgment against the party moving for a transfer. The cases are also alike in the fact that no steps were taken to transfer the ease by filing the papers in the circuit court.

It settles the proposition that the party must comply with the act of congress before the case is transferred from the jurisdiction of the state court.

Most of the cases relied on in support of the opinion in this case simply decide that, the right to have the case removed is perfected by filing the petition' and proper security, not that the case is actually removed.

The first step to a removal is to file the petition and bond. This is a condition precedent to the removal, and not a removal. The removal consists in filing the papers in the circuit court. A party may perform the condition precedent, may perfect his right, and still not exercise it after all. After the right to a removal is perfected, the state court is to proceed no farther without the assent of the mover; but when it appears no removal has taken place within the proper time, the presumption is that the party has abandoned the removal.

In Insurance Co. v. Dunn, 19 Wall. 214, the transfer was completed, and the case was on the docket of the circuit court, and stress is laid on that fact. It is said: “ The cause was out of the common pleas, -and in the circuit court.” Again, “ The conditions precedent having been complied with, the act of congress expressly required the state court to proceed no further in the suit.’ ” Again, “ It is not denied that the requirements of the act of congress have been fully complied with.”

In Dart v. McKinney, 9 Blatchf. 359; Fish v. The Union P. R. R. Co., 8 Blatchf. 299; Dennistown v. Draper, 5 Blatchf. 336; Osgood v. Ch., D. & V. R. R. Co., 6 Bissell, 332; Ellerman v. The N. O., M. & T. R. R. Co., 2 Wood, 120; French v. May, 22 Wall. 250, and several other cases we have examined, where the doctrine relied on, “ that all proceedings subsequent to the petition and bond are coram non judice,” were cases which had been actually transferred. It is conceded that in such cases the jurisdiction of the state court is ousted.

Our claim is, that when the conditions for removal have not been fully complied with by filing copies of the papers in the circuit court within the time fixed, the proceedings in the state court are only suspended, and may be resumed again by consent of the party moving, or, as I think, it may be resumed without his consent, after it is made to appear that the cause has not been transferred.

I fully agree with the opinion, that “ so long as the plaintiff in error continued to stand upon and assert its right of removal, ... all subsequent proceedings were utterly invalid.” But it is denied that, in this case, the plaintiff in error “ continued to stand upon and assert its rights.” The record shows it had slept upon its rights for several months instead of standing on them with due diligence.

I am aware that numerous dicta, and general remarks of eminent judges, may be cited in support of the propositions, that all proceedings of the state court, after petition and bond are filed for a removal, are “ coram non judice and void,” “ utterly invalid,” etc., and that “ consent can not give jurisdiction ” (per Swayne, J., 19 Howard, 224); but it is believed no carefully adjudicated case can be found, where the point, now under consideration, was decided, that supports the opinion in this case.

That consent can not give jurisdiction over the subject-matter is obvious, but when that axiom is applied to the person of a litigant, in a court having complete authority to hear and determine the subject-matter, it is a gross misapplication of an admitted principle, which is not only unsupported by authority, but in violation of both principle and authority.

All know how unsafe it is to rely on general remarks found in reported cases, not necessary to the decision of the point. Such generalities are dangerous guides, and likely to mislead. It is only when the case in hand requires that the judicial mind shall be concentrated on a given point, that its conclusions should be adopted as evidence of the law, or be entitled to weight.

It is better to be guided by the certain light of sound legal principles, aided by reason and authority, if we wish to reach a correct conclusion.

Note. — Since the foregoing dissent was written, the supreme court has, in the case of the P. R. R. Co. v. Peoples (31 Ohio St. 537), fully affirmed the principle, that a foreign corporation operating a railroad in Ohio, under the laws of this state, derives all its powers and franchises to do so from Ohio laws, and is, as to all acts done under such powers and franchises, a domestic and not a foreign corporation. The opinion in that case fully sustains conclusions reached in the dissent in case of the B. & O. R. R. Co. v. Cary, supra.

Ashburn, J., also dissented.  