On Rehearing.
Rosenherger & Reed and Reinhardt & Schibsby, for plaintiff.
M. A. Dow, O. M. Spencer, Paul F. Walker, F. P. Sebree, and Warner, Dean, McFeod & Timmouds, for defendants.
POLLOCK, District Judge.This case again comes before the court on motion for rehearing of matters decided on motion to remand to the state court. In passing on this motion for rehearing I deem it proper to state I am neither unmindful of the importance of the ruling made nor of the fact that the only known reported case decided since the opinion in Ex parte Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264, was announced, identical in principle and point of fact, holds to a contrary doctrine than that expressed in the opinion on the motion to remand heretofore filed in this case. I refer to Barlow v. C. & N. W. R. R. Co. (C. C.) 164 Fed. 765. However, I think it well to bear in mind, also, in any given case, no matter how large in importance, how sweeping in result, or how lasting in consequence, unless compelled thereto by controlling decisions, there is but one result possible, that which commends itself to the intelligent judgment of the court. Such judgment may be wrong in principle or declared erroneous in law by the exercise of a reviewing power, but none the less it is the only thinkable or possible judgment which may be announced by a court of first instance.
From a careful reading and consideration of the briefs of counsel filed on this motion, I find I must overrule it, and adhere to my original opinion on the motion to remand, for the reason I still believe! the original opinion states the law, and is firmly based on certain fundamental and well-settled principles announced in various decisions of the Supreme Court touching the question at issue. As was stated in the original opinion, the judicial power exercised by this court, whether it be in its nature original or such as is obtained by the exercise of the power of removal, must be limited to that granted by Congress, and no more. The acts of Congress granting judicial power to this court mean precisely what the Supreme Court by its decisions declare, for the power which made the grant and the power which construed and limited it are each in their appropriate spheres supreme.
By the decisions of that court certain propositions, to my mind determinative of this matter, are settled beyond the power of-argument to disturb.. In Galveston, etc., Railway v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248, it was held an alien could not bring and maintain an action against a corporate citizen of a state of this country in a judicial district of which such corporation was not a resident or inhabitant, without consent of defendant, although the defendant in the case might undoubtedly have been proceeded against by the alien plaintiff -in a state court under state laws in the judicial district wherein the action was brought; and fo'r the very reason the action was not brought against the corporation defendant in the judicial district of which the defendant was a resident or inhabitant the judgment obtained by the plaintiff in the federal trial court was reversed. The authority of that case has not to my mind been questioned, but, on the contrary, has been many times followed by the Supreme Court. Therefore the plaintiff in this case could not have originally brought and maintained her action in this court without the consent of defendants. In Cochran v. Montgomery Co., 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182, it was expressly ruled no- case? *173.-¡in be removed from a state court into a Circuit Court of the United States unless it be such a case as could have been originally brought by the plaintiff in such federal Circuit Court. '
' In Ex parte Wisner, supra, it is held, where a case is brought in a state court oí a state of which neither party is a citizen, it cannot be removed into a Circuit Court of the United States sitting in such state wherein the action is brought, although both parties to the action consent thereto or take such steps in the federal court after a removal as will be construed as a waiver of objection to the jurisdiction of the court. However, the authority of that case was partly denied by tiie Supreme Court in the case of In re Moore, 209 U. S. 490, 28 Sup. Ct. 585, 706, 52 L. Ed. 904, and it was there held, where a corporate citizen of this country is proceeded against in a state coiirt ‘of a state of which neither party is a citizen, and the corporate citizen removes the case into the federal Circuit Court, and the plaintiff after removal acquiesces in the jurisdiction of that court by taking such .steps therein after removal as will be construed as a consent to the exercise of jurisdiction over the person in such case, the federal court, having jurisdiction over the subject-matter because of the diverse citizenship of the parties and over the person of the defendant by the act of removal taken by it, obtains full and complete jurisdiction of both the subject-matter and the parties thereto by the implied consent given by the plaintiff by the steps taken therein after removal without objection. In that case but two questions were raised for decision, as stated by Mr. Justice Brewer delivering the opinion of the court, after stating the facts, as follows:
■‘This brings up two questions: First, whether both parties did consent to accept the jurisdiction o£ the United States court; and, second, if they did, what effect such consent had upon the jurisdiction of the United States court.”
It was found in that case both parties had consented to the exercise of the jurisdiction of the federal court over their controversy, and notwithstanding the doctrine of the Wisner Case, as the court, had jurisdiction over the subject-matter of the controversy by reason of the diverse citizenship of the parties, the consent to the exercise of its jurisdiction over the persons of both parties made the jurisdiction of the court full and complete. However, in this case the plaintiff lias given no consent to the exercise of jurisdiction by this court over her person, and has taken no step in this case since the removal taken by defendants which has not been by her expressly and intentionally opposed to the exercise of jurisdiction by this court over her person. How, then, can she he said to have given her consent, which, as has been said, is essential to the obtaining of full and complete jurisdiction over both the subject-matter and the parties to the action. She did consent to the exercise of jurisdiction by the state court in which she brought her action over both her person and her controversy, but she had no choice of forums. She could not have commenced her action in this court without consent of defendants. How it can be held her resort to a court of this state, the only one in the state to which she could resort, is tantamount to a consent to the exercise of jurisdiction over her person by this court, a court to which she could *174not have resorted in the first instance of her own will, had she felt so inclined, without consent of defendants, is beyond my comprehension, and to my mind such reasoning is both illogical and unsound.
It follows that the motion for rehearing will be denied.