(dissenting).
There was not diversity of citizenship in this ease between the plaintiff and the defendant Fitzsimmons Drilling Company; both of them being citizens of Louisiana. To avoid the difficulty, it was claimed in the petition for removal that the plaintiff’s selection and appointment as administrator was fraudulently obtained, in order to defeat the jurisdiction of the federal court. In the majority opinion, the pertinent facts are detailed which are held to justify denial of the motion to remand. I dissent because they are deemed to be wholly insufficient.
The suit was brought by the administrator of the estate of the deceased on two cans-es of action. The first was to recover damages for the loss by the next of ldn of decedent’s life, for their benefit, pursuant to sections 824 and 825, Comp. Okl. Stat. 1921, which require an administrator, if appointed, to prosecute the action. The second was brought, as required, by the administrator to recover damages which accrued to the decedent for pain and suffering endured by him, as an asset of the estate. St. L. & S. F. R. Co. v. Goode, 42 Okl. 784, 142 P. 1185, L. R. A. 1915E, 1141; Smith v. C., R. I. & P. Co., 42 Okl. 577, 142 P. 398. The joinder of the causes of action was authorized in the name of the administrator. Sections 266 and 211, C. O. S. 1921.
It is settled law that the citizenship of a personal representative and not that of the beneficiaries controls for purposes of jurisdiction when the former may sue under state law. Rose, Fed. Juris & Proc., § 262; Memphis St. Ry. Co. v. Bobo and Moore (C. C. A.) 232 F. 708; City of Detroit v. Blanch-field (C. C. A.) 13 F.(2d) 13, 47 A. L. R. 314; Mexican Cent. R. Co. v. Eckman, 187 U. S. 429, 23 S. Ct. 211, 47 L. Ed. 245; Memphis St. Ry. Co. v. Moore, 243 U. S. 299, 37 S. Ct. 273, 61 L. Ed. 733; Black v. Brown, 276 U. S. 518, 48 S. Ct. 404, 72 L. Ed. 681, 57 A. L. R. 426. In Oklahoma, an administrator is not a merely nominal party. By-section 1197, e. 5, art. 4, C. O. S. 1921, the possession of the estate is vested in him, and it is his duty to collect the debts due the decedent or the estate.
Without reviewing the facts in opposition to the motion to remand, it is a sufficient answer that the widow of the deceased was a party, to plaintiff’s appointment by her resignation and designation of him as her agent, counsel in soliciting his appointment is presumed to represent her in selecting him in her stead, his signature on the petition and bond for his appointment was not required by the laws of Oklahoma, he was qualified as a nonresident (sections 1153 and 1141, art. 3, c. 5, C. O. S. 1921), the estate in Oklahoma conferred jurisdiction to appoint him (section 1088, art. 1, c. 5, C. O. S. 1921), the official oath taken by him obligated him to perform the duties of his trust, and there is no showing that the county court did not direct this suit in his name.
The plaintiff’s selection and appointment was not fraudulent, because a lawful act cannot be so regarded. The county court alone had jurisdiction to make the appointment, it imported a finding of every essential jurisdictional fact, and it is not subject to collateral attack. Wolf v. Gills, 96 Okl. 6, 219 P. 350. Until vacated by the county court, the appointment stands as authoritative and *32binding in every other forum. It is immaterial that the object of the plaintiff’s appointment was to defeat removal to the federal court, within the same principle that joining a defendant in a suit is not fraudulent, whatever the motive may be, if by the state law he has a joint liability. Illinois Central R. Co. v. Sheegog, 215 U. S. 308, 30 S. Ct. 101, 54 L. Ed. 208; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 S. Ct. 460, 55 L. Ed. 521. In my opinion, the judgment should be reversed, with direction to remand this ease to the state court.
But, if this be a mistaken view, and the ease was removable, then the action itself should have been dismissed by the District Court, and we should reverse the judgment, with direction to dismiss it, because the defendant’s position is necessarily that there is no competent party plaintiff. A federal court is bound of its own motion to dismiss a suit where jurisdiction is wanting. Section 80, title 28, U. S. Code (28 USCA § 80). The defendant takes the inconsistent position that for the purpose of removal the plaintiff is not a competent party and yet for the purpose of a trial he is competent, and it is here insisting on an affirmance of the adjudication on the merits of the demands in suit. Either the action must be remanded or dismissed. The ease of Cerri v. Akron-People’s Telephone Co., cited in the majority opinion, is authority for the dismissal of this ease.
There were four prior suits. They were brought upon but one cause of action, the first in this suit, to which the second was added for the first time in this case. The defendant may have had ground to enjoin those suits as vexatious, but the remedy was waived. The right to dismiss a case without prejudice before submission is expressly authorized by the state law. Section 664, c. 3, art. 22, C. O. S. 1921. There was no adjudication in those suits. They have no bearing in this controversy, are mere matters of aggravation, and are of no consequence.
I am unable to find any claim to a separable controversy in the removal petition. However, if asserted there, it would be immaterial. Both causes of action, the second adopting the first, charged a. joint liability against the defendants. A defendant cannot make an action several which a plaintiff has elected to make joint. Rose, Fed. Juris. & Proc., § 362; Torrence v. Shedd, 144 U. S. 527, 12 S. Ct. 726, 36 L. Ed. 528; Ches. & O. R. Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121; Illinois Central R. Co. v. Sheegog, supra; McAllister v. Ches. & O. R. Co., 243 U. S. 302, 37 S. Ct. 274, 61 L. Ed. 735.