Oh Rehearing.
The defendant corporation has asked for a reconsideration of the motion to remand, and has suggested three separate points with respect to which the opinion heretofore made by this court did not contain citations of all of the reported cases. It is urged that as to these points there is further room for argument. On this account, it has seemed best to refer specifically to the cases to which attention is directed, and to restate the questions referred to. These general propositions come up so frequently in connection with other questions, but so infrequently as the main point in any one case, that no one decision (when considered as to these, questions alone) completely comprises all phases of the questions suggested as to removal and remand.
The first question raised is with reference to the finding of this court that nothing was shown in the removal record from which it could be inferred that the defendant was found, or could be found, for the purposes of service, within the jurisdiction of the Circuit Court of the Eastern District of New York. The defendant cites the case of Barrow Steamship Co. v. Kane, 170 U. S. 100, 112, 18 Sup. Ct. 526, 42 L. Ed. 964, to prove that an alien person or corporation can be sued, in an action by a citizen of the United States, in the Circuit Court of any district within which any valid service can be procured upon the defendant. This proposition should not be disputed, and valid service means such service as the United States courts will recognize, namely, service in a district within which the defendant is doing business and has some officer upon whom process can be served (who is there other than casually). But admitting this to be true, and recognizing that the language of Act March 3, 1887, c. 373, § 1, 24 Stat. 552 (U. S. Comp. St. 1901, p. 514), as corrected by Act Aug. 13, 1888, c. 866, § 1, 25 Stat. 433 (U. S. Comp. St. 1901, p. 508), “but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant,” does not apply to an action by a citizen against an alien, nevertheless, the further provision of the statute that “no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant,” when considered in the light-of the subsequent clause limiting the bringing of actions by an assignee of a chose in action, fully justifies, it seems to this court, the conclusion formerly reached that *88the service must be tested to see if that service was actually made within the' district, upon the proper representative of a foreign corporation doing business therein, and also to see whether this district could have'had original jurisdiction of the action itself.
These points were thoroughly considered upon the former determination of this motion. The service in the case at bar was made upon the superintendent of insurance of the state of New York, under a state law, by which his authority as the representative of a foreign corporation extends over the entire state; but it does not follow from this that the summons and complaint herein were served in the Eastern District of New York. On the contrary, the court can take judicial notice of the fact that the superintendent of insurance maintains his office at the capítol of the state, and in the Southern District of New York, and must be personally served in those districts if such service is relied upon in the federal court. Further, there is certainly nothing in the papers to show that the defendant corporation was doing any business in the Eastern district, and a constructive permissive right to do business is hardly of such a sort as would serve for an excuse upon which to found the jurisdiction of the Circuit Court of the United States, in a case like the one at bar, where doubt as to the entire service exists.
The second point urged by the defendant is that this court was wrong in suggesting that the last clause of section 1 of the act above referred to, forbidding the removal of a case in which an assignee of a chose in action is plaintiff, unless such suit could have been maintained by the original assignor in the district to the Circuit Court of which removal is asked, can apply to a suit against an alien corporation. The learned counsel has called the attention of the court to a long line of decisions, viz.: Manufacturers’ Commercial Co. v. Brown Alaska Co. (C. C.) 148 Fed. 308; Iowa Lillooet Gold Mining Co., Limited, v. Bliss (C. C.) 144 Fed. 446; Rome Petroleum & Iron Co. v. Hughes Specialty Well Drilling Co. (C. C.) 130 Fed. 585; Duncan v. Associated Press (C. C.) 81 Fed. 417; Wilson v. W. U. Tel. Co. (C. C.) 34 Fed. 561; Cowell v. City Water-Supply Co. (C. C.) 96 Fed. 769; Whitworth v. Illinois Central Railroad Co. (C. C.) 107 Fed. 557; Kansas Co. v. Interstate Co. (C. C.) 37 Fed. 3; Fales, Adm’x, v. Chicago, M. & St. P. Ry. Co. (C. C.) 32 Fed. 673; Gavin v. Vance (C. C.) 33 Fed. 84; First Nat. Bank v. Merchants’ Bank et al. (C. C.) 37 Fed. 657, 2 L. R. A. 469; Burck v. Taylor (C. C.) 39 Fed. 581; Davidson v. Mexican Nat. R. R. Co., 157 U. S. 201, 208, 15 Sup. Ct. 563, 39 L. Ed. 672; McCormick Harvesting Mach. Co. v. Walthers, 134 U. S. 41, 10 Sup. Ct. 485, 33 L. Ed. 833; Dillon on. Removal of Causes, § 96; Creagh v. Equitable Life Assur. Soc. (C. C.) 83 Fed. 849; Memphis Sav. Bank v. Houchens, 115 Fed. 96, 52 C. C. A. 176; Pepper v. Rogers (C. C.) 128 Fed. 987; Ex parte Schollenberger, 96 U. S. 378, 24 L. Ed. 853. And especially to the case of Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, by which, after much conflict, the construction placed by this court upon both parts of the státute was ultimately determined to be the law, so far as suits between citizens of the United States are concerned. These cases need not be reviewed at length. The case of Ex *89parte Wisner, supra, was considered by this court upon the former motion; but, because of the extensive conflict of ideas, citation of a great number of cases was purposely avoided, and the principle was applied to the present suit against an alien, in the belief that if, under the statute above quoted, a suit on a chose in action cannot be maintained by an assignee, unless it could have been maintained originally by the assignor, no distinction should be made because of the citizenship or foreign residence of the defendant. A discussion as to whether all of the terms of the acts of 1875 and 1887, above quoted, are applicable to suits against aliens, does not affect the principles set forth in the Wisner Suit, which apply to one class equally as to the •other.
A third point which is again called to the attention of the court is with relation to the doubt expressed by this court as to the extension of the phrase, “a controversy between citizens of a state or foreign states, citizens or subjects,” to the case of the joinder of causes ■of action possessed by citizens of different states, against the subject of some foreign state. It is needless to 'Say that this motion was not determined upon this point alone, nor does the point seem to have been settled. In the case of Sweeney v. Carter Oil Co., 199 U. S. 252, 26 Sup. Ct. 55, 50 L. Ed. 178, the words “citizens of different states” were held to cover a suit between citizens of several states of the United States, and a citizen of the state in which the action was brought, which was not a state in which any of the plaintiffs resided. See, also, Smith v. Lyon, 133 U. S. 315, 10 Sup. Ct. 303, 33 L. Ed. 635, for a further recognition of the same principle.
In the case of Ballin et al. v. Lehr et al. (C. C.) 24 Fed. 193, a joint cause of action by a citizen of New York and a citizen of New Jersey against a citizen of Maryland and a subject of Prussia was removed to the United States Circuit Court, upon the ground that suits are removable in which “there is a controversy between citizens of different states, or between citizens of a state and foreign citizens or subjects.” The only question considered was whether any two of the parties upon opposite sides of that suit were citizens of the same state. There was no assignment nor joinder of separate suits involved.
In the opinion heretofore filed this question was stated broadly and in such a manner as to apparently conflict with the decision in Sweeney v. Carter Oil Co., supra. It was not intended in the former opinion to determine more than that 14 different persons, having respectively 14 separate causes of action, and being citizens of at least two different states, could not bring one suit against an alien, on the sole ground that he could be served with process. The opinion as filed seemed to decide that a joint cause of action against an alien, by the several owners thereof, if residents of different states, could not be maintained in the district where' the alien, could properly be served. The cases cited show the doubtfulness of the statement heretofore made.
It might be urged that, in order to avoid multiplicity of suits, a joinder would be advantageous, but can it be contended that inhabitants of different states, each having entered into a contract with the subject of some foreign government, and each contract having been *90made within a different state of the United States, and therefore subject to different laws, could unite in one suit, because the defendant was an alien, and could be served in the district in which that suit was brought? If such joinder would be impossible, other than by motion, there would seem to be some doubt about the jurisdiction of an action, in which the 14 separate suits were joined under the guise of an assignment to one person, with the idea that that one person could obtain service upon the defendant. The spirit of the statute, “nor shall any Circuit or District Court have cognizance of any suit, * * * unless such suit might have been prosecuted * * * if no assignment * * * had been made,” would seem to apply to a suit brought by the assignee of the 14 separate actions, even though the letter of the statute might be considered to apply separately to each of the 14 component parts of the assigned causes of action, with the idea of judging each by itself.
Following this latter idea, let us look at the situation involved in this motion: The plaintiff is the assignee of 14 people, each one of whom is alleged to have had a separate cause of action or right to bring suit against the defendant. It. appears that one of these assignors resided in California, and that another is a corporation of the state of New York; but, disregarding the residence of the assignors, and assuming that they have assigned to the plaintiff, and that the plaintiff has brought suit against the defendant on all of the assignments, in the county of Kings and in the Supreme Court of New ■York, what rights did the defendant have before answering? He could have answered in the state court. If the jurisdictional facts of diversity of citizenship appeared upon the record, he could appear specially and remove into the United States court, and when there he could have moved to set aside the service of the summons, and for a dismissal of the action,, upon the grounds which have been previously considered in this opinion; that is, that the summons and complaint had not been properly served in the district in which the Circuit Court was located, to which the action had been removed. If this course had been taken, a motion to remand by the plaintiff might not save the action if the service were defective; but the defendant did not pursue this course, nor attempt to set aside the service. He moved to remove the case, under the sections previously cited, into the United States court for this district, which is the district in which the Supreme Court for the county of Kings is located, and which is therefore the proper district for removal proceedings. He then, proceeded to enter a general waiver of questions as to jurisdiction by filing a general answer in this court, but he did not do this until after the motion to remand had been made.
The defendant has taken the position that he wishes to try the action upon the merits in this court, and that he has attempted to waive any right to have the case brought in any other district before any other Circuit Court of the United States. His position has certainly had the effect of estopping him from now setting up any defect in the service for the purpose of asking that the service be set. aside; and yet where it is apparent that the court has not jurisdiction, and where the waiver of jurisdiction did not occur until after the motion to remand *91had been made, it would seem that the alternative provided by section 6 of the statute above recited, to the effect that, when it shall appear to the satisfaction of the Circuit Court that such suit does not involve a dispute properly within the jurisdiction of said Circuit Court, the said Circuit Court shall proceed no further therein, “but shall dismiss the suit or remand it to the court from which it was removed, as justice may require,” is the only remedy left open to the court.
The service by which this suit was brought (if such a suit is possible) does not seem to the court to have been sufficient to maintain an action in the Circuit Court of the United States for this district.
The motion to remand was made at a time when this defect appeared upon the record, and before any waiver of that defect, and in so far as there is any question as to the sufficiency of the service, or as to the maintenance of an action of this nature by the assignee of such a number of causes of action, it would seem that the proper course to pursue is to adhere to the original decision and remand the case to the Supreme Court of New York for the County of Kings, which apparently has acquired jurisdiction therein.