Odhner v. Northern Pac. Ry. Co.
Decision Date | 11 November 1910 |
Parties | ODHNER v. NORTHERN PAC. RY. CO. |
Court | U.S. District Court — Southern District of New York |
Robert H. Griffin, for plaintiff.
Stetson Jennings & Russell, for defendant.
This action was brought in the Supreme Court of the state of New York, the venue being laid in the county of New York.
The defendant removed it to this court on the ground of diversity of citizenship. The plaintiff moves to remand. The plaintiff resides in New York, but is an alien and a subject of the King of Sweden. The defendant is a Wisconsin corporation.
The action is to recover damages alleged to have been sustained by the plaintiff at Minneapolis, Minnesota. We have, then, in the Southern District of New York, an action brought by an alien against a Wisconsin corporation upon a cause of action which arose in Minnesota.
The defendant concedes as follows:
'It follows, therefore, that while the alien plaintiff in the present suit could not originally have brought and maintained this suit in this court against the objection of the citizen defendant, nevertheless such right of the defendant to object was a personal privilege which might be waived by the defendant, and was in fact waived by removing the cause to this court.'
But the plaintiff has waived none of his rights and has never consented to present his controversy to this court.
In the Matter of Moore, 209 U.S. 490, 28 Sup.Ct. 585, 706, 52 L.Ed. 904, Mr. Justice Brewer adopts the syllabus of the Wisner Case as a concise statement of the conclusion of the court and says:
The court then holds that both parties did consent, the defendant by filing a petition for removal, and the plaintiff by filing an amended petition in the United States Circuit Court and giving time, by stipulation, to the defendant to answer.
I cannot avoid the conclusion that the Wisner decision disposes of the case at bar. The only important distinction upon the facts is that the plaintiff in the Wisner Case was a citizen and in this case he is an...
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