parties, plaintiff or defendant, will not prevent a removal.3 In determining between whom the controversy exists, the court is not bound by the title of the case or the form of the proceedings; but should examine the record, ascertain the matter in dispute and arrange the parties on opposite sides of the same according to the facts, no matter what their technical place as plaintiffs or defendants may be. A controversy exists whenever there. is a justiciable demand, although the defendant does not resist the relief sought; and, at least, in the absence of fraud, even if he has requested the plaintiff to institute the suit.5

There is no jurisdiction, because of difference of citizenship, when any one of the necessary, and not formal, parties is a citizen of the District of Columbia, or a citizen of a Territory; 7 even if other parties to the controversy, on the same side as such citizen of the district or Territory, are citizens of different States from that of the plaintiff; but formerly a resident of the District of Columbia might, in a proper case, maintain a crossbill in a suit where the jurisdiction was founded upon there. being a controversy between citizens of different States.9

It has been said that a person who changes his permanent residence to a foreign country, although he still remains a citi

infra, 118; see Chapter XXXII on Removal of Causes. But see Blackburn v. Portland G. M. Co., 175 U. S. 571, 44 L. ed. 276; Pittsburg, C. & St. L. Ry. Co. v. B. & O. R. Co., C. C. A., 61 Fed. 705. Infra, § 42.

3 See infra, §§ 539, 540.

4 Removal Cases, 100 U. S. 457, 468, 25 L. ed. 593, 597; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Anderson v. Bowers, 40 Fed. 708; Brown v. Murray Nelson & Co., 43 Fed. 614; Mangels v. Donau Br. Co., 53 Fed. 513; Cilley v. Patten, 62 Fed. 498; Board of Trustees, v. Blair, 70 Fed. 414;

infra, $43. But see Reavis V.
Reavis, 98 Fed. 145.
5 Re Metropolitan Railway Re-
ceivership, 208 U. S. 90, 52 L. ed.
403, in which the author was counsel.

6 Hepburn v. Ellzey, 2 Cranch, 445, 2 L. ed. 332; Westcott v. Fairfield, Pet. C. C. 45; Barney v. Baltimore, 1 Hughes, 118; Cameron v. Hodges, 127 U. S. 322, 32 L. ed 132; Hooe v. Jamieson, 166 U. S 395, 41 L. ed. 1049.

7 New Orleans V. Winter, 1 Wheaton, 91, 4 L. ed. 44; Cameron v. Hodges, 127 U. S. 322, 32 L. ed. 132; Snead v. Sellers, C. C. A., 66 Fed. 371; McClelland v. McKane, 154 Fed. 164.

8 Watson v. Bonfils, C. C. A., 116 Fed. 157.

9 Ulman v. Iaeger's Adm'r, 155 Fed. 1011,

zen of the United States, ceases to be a citizen of a State who can be sued in a Federal Court, where the jurisdiction is founded upon a difference of citizenship; 10 but a better statement of the rule seems to be that she cannot then be sued there upon that ground, when served in the State of her former domicile. A change of citizenship after the jurisdiction has once attached will not divest it,11 even, it was held, in case of a change of citizenship made before an amended bill was filed.12 The subsequent consolidation of a foreign with a domestic corporation will not defeat the jurisdiction.13 When at the time a bill is filed the court has no jurisdiction, jurisdiction cannot subsequently be conferred by an amendment striking out a party plaintiff who was properly and necessarily made such at the commencement of the suit; 14 but in one case the court retained Jurisdiction by allowing an amendment which made one of the original plaintiffs a defendant.15 When an indispensable party is omitted at the beginning of the suit, his citizenship if subsequently joined as defendant may defeat the jurisdiction.16 The same ruling was made, when after an additional defendant was joined, the plaintiff amended his pleadings so as to set forth a cause of action to which such new defendant was an indispensable party.17 When they are not indispensable parties, jurisdiction may be retained upon a discontinuance or dismissal as regards defendants who are citizens of the same State as

10 Hammerstein v. Lyne, 200 Fed. 165, 172. See infra, § 46.

11 Morgan's Heirs v. Morgan, 2 Wheat. 290, 4 L. ed. 242; Mollan v. Torrance, 9 Wheat. 537, 6 L. ed. 154; Clarke v. Mathewson, 12 Pet. 164, 9 L. ed. 1041; Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078; Tug River Coal & Salt Co. v. Brigel, C. C. A., 86 Fed. 818; Haracovic v. Standard Oil Co., 105 Fed. 785; Collins v. Ashland, 112 Fed. 175. But see Weaver v. Kelly, 92. Fed. 417; Mangels v. Donau B. Co., 53 Fed. 513.

12 Tug River C. & S. Co. v. Brigel, 86 Fed. 818.

13 Louisville, N. A. & C. Ry. Co. v. Louisville Trust Co., 174 U. S. 552, 43 L. ed. 1081, C. C. A., 75 Fed. 433, 22 C. C. A. 378; Chicago, I. & N. P. R. Co. v, Minnesota & N. W. R. Co., 29 Fed. 337.

14 Anderson v. Watt, 138 U. S. 694, 34 L. ed. 1078. But see Hicklin v. Marco, C. C. A., 56 Fed. 549; Whittle v. Artis, 55 Fed. 919. 15 Conolly v. Taylor, 2 Peters, 556, 7 L. ed. 518.

16 Patterson v. Delaware & Hudson Co., C. C. A., 251 Fed. 255.

17 Devost v. Twin State Gas & Elec. Co., C. C. A., 250 Fed, 349.

the plaintiff; after, 18 as well as before,19 they have appeared; and even, it was held, where they were restored a few days later upon their petition for intervention; 20 but the resignation after suit brought of a defendant trustee,21 and the filing of a disclaimer by a defendant,22 who were citizens of the complainant's State, were held not to save the jurisdiction. Such a discontinuance did not save the jurisdiction in an action at law against two makers of a promissory note.23 Jurisdiction is not lost because a defendant ceases to resist the plaintiff's demand; 24 nor by the addition of new parties, whose citizenship would have prevented their original joinder in the suit, and who come in by amendment,25 or by intervention.26 even, it was held, when at the time he filed his bill plaintiff expected

18 Beebe v. Louisville, N. O. & T. R. Co., 39 Fed. 481, 484; Morse v. South, 80 Fed. R. 206, 207; Claiborne v. Waddel, 50 Fed. 368; Hicklin v. Marco, C. C. A., 56 Fed. 549; Horn v. Lockhart, 17 Wall. 570, 21 L. ed. 657; Bane v. Keefer, 66 Fed. 610; Mason v. Dullingham, 82 Fed. 689; Grove v. Grove, 93 Fed. 865; Sioux City T. R. & W. Co. v. Trust Co. of N. Am., C. C. A., 82 Fed. 124; Oxley Stave Co. v. Coopers' Union, 72 Fed. 695; s. c. as Hopkins v. Oxley Stave Co., C. C. A., 83 Fed. 912; Smith v. Consumers' C. O. Co., 86 Fed. 359; Tug. R. C. & S. Co. v. Brigel, C. C. A., 86 Fed. 818; Columbia Digger Co. v. Rector, 215 Fed. 618; see Chapter XXXII, on Removal of Causes.

19 A. R. Barnes & Co. et al. v. Berry et al., 156 Fed. 72.

20 Sioux City T. & W. Co. v. Trust Co. of N. Am., C. C. A., 82 Fed. 124; s. c. 173 U. S. 99, 43 L. ed. 628.

21 Ruohs V. Jarvis-Conklin Mt. Tr. Co., 84 Fed. 513.

22 Wetherby v. Swason, C. C. A., 62 Fed. 193. But see Frazer Lubri cator Co. v. Frazer, 23 Fed. 305;

Wirgman v. Persons, 126 Fed. 449,

451.

23 Chase v. Lathrope, 254 Fed. 715. 24 Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641.

25 Ober v. Gallagher, 93 U. S. 199, 206, 23 L. ed. 829, 831; Stewart v. Dunham, 115 U. S. 61, 64, 29 L. ed. 329, 330; Phelps v. Oakes, 117 U. S. 236, 29 L. ed. 888; Hardenbergh v. Ray, 151 U. S. 112, 38 L. ed. 93. But see Mangels v. Donau Br. Co., 53 Fed. 513; Weaver v. Kelly, 92 Fed. 417; Fraser v. Cole, C. C. A., 214 Fed. 556.

26 Osborne & Co. v. Barge, 30 Fed. 805; Belmont Nail Co. v. Col. I. & S. Co., 46 Fed. 336; Henderson v. Goode, 49 Fed. 887; United El. S. Co. v. La. El. Co., 68 Fed. 673; Society v. Shakers v. Watson, C. C. A., 68 Fed. 730; Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641; Cole v. Philadelphia & E. Ry. Co., 140 Fed. 944; Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159; infra, § 258: Contra, Forest Oil Co. v. Crawford, C. C. A., 101 Fed. 849; Clauss v. Palmer Oil Co., C. C. A., 222 Fed. 870 where the new parties intervened as plaintiffs. See also

that they would intervene,27 by succession through an assignment of the plaintiff's interest,28 or by operation of law; 29 nor by the filing of counterclaims or cross bills between defendants who are citizens of the same State.30 It has been said that when an amendment which is not compulsory brings in new parties the defense of citizenship must be determined from the bill as amended.31

Where in a bill between two parties for an accounting it appears that the partnership assets alleged in the bill are worthless, the Court has jurisdiction to enter decrees against the partners in favor of the intervening creditors irrespective of the citizenship of the latter.32 Jurisdiction was taken of a creditor's bill to enforce a State judgment against the interest of a surviving partner although the result might be to compel defendants who were both residents of the same State to litigate their mutual demands.33. Where the court, because of diversity of citizenship, originally had jurisdiction its right to consider a counterclaim which might be the subject of an independent suit and does not affect matters alleged in the original bill depends upon the citizenship of the parties to the counterclaim.34

It has been held that there is a controversy between citizens of different States when one of them has a justiciable claim against the other, although the latter consents to the jurisdiction and to the appointment of a receiver before the complainants had obtained judgment in an action at common-law; 35 and in the case of a suit by a stockholder to procure the appointment

Clyde v. Richmond & D. R. Co., 65
Fed. 336.

27 Fraser v. Cole, C. C. A., 214 Fed, 556.

28 Sioux City Tr. R. & W. Co. v. Trust Co. of North America, C. C. A., 82 Fed. 124; s. c. 173 U. S. 99, 43 L. ed. 628; Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159. Contra, Pittsburgh, S. & N. R. Co. v. Fiske, C. C. A., 178 Fed. 66.

29 Glover v. Shepperd, 21 Fed. 481; Jarboe v. Templer, 38 Fed. 213. Contra, Adams Exp. Co. v. Denver & R. G. Ry Co., 16 Fed. 712.

Fed. Prac. Vol. I-9

30 Portland Wood Pipe Co. V. Slick Brox. Const. Co., 222 Fed. 528. 31 Patterson v. D. L. & Hudson Co., C. C. A., 251 Fed. 255.

32 Lackner v. McKechney, C. C. A., 252 Fed. 403.

33 Feidler v. Bartleson, C. C. A., 161 Fed. 30.

34 Cleveland Eng. Co. v. Galion, D. M. Truck Co., 243 Fed. 405.

35 Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403.

of a receiver because of insolvency, when his shares have been assigned to him for the purpose of the commencement of the suit.36

$ 41. Parties to the controversy. A controversy between citizens of different States is one in which every party upon one side is a citizen of a different State from that of every party upon the other.1 In determining between whom the controversy exists, the court is not bound by the title of the cause or the form of the pleadings; but should examine the record, ascertain the matter in dispute and arrange the parties on opposite sides of the same, according to the facts, no matter what their technical place as plaintiffs or defendants may be.2