Argument for Petitioner.

219 U. S.

It is the duty of this court to reconcile decisions and, in order to enforce the correct doctrine, to determine which rest upon the right principle and to overrule or qualify those conflicting therewith. Conflicting decisions regarding issuing mandamus to the Circuit Court to correct its decisions in regard to jurisdiction over cases removed from the state court reviewed and harmonized.

In this case, Ex parte Hoard, 105 U. S. 578, and cases following it applied, as expressing the general principle involved; Virginia v. Rives, 100 U. S. 313, and cases following it distinguished, as applicable only to exceptional instances not involved in this case; Er parte Wisner, 203 U. S. 449; In re Moore, 209 U. S. 490, and In re Winn, 213 U. S. 458, disapproved in part and qualified.

THE facts are stated in the opinion.

Mr. William J. Ammen for petitioner:

The original removal petition, whether considered alone or in connection with the entire record, not only failed to show a removable case, but affirmatively showed that the case was not removable under the law, on the ground of diverse citizenship. In re Moore, 209 U. S. 490; Ex parte Wisner, 203 U. S. 449; Southern Pacific Co. v. Burch, 152 Fed. Rep. 168; Goldberg &c. Co. v. German Ins. Co., 152 Fed. Rep. 831; Yellow Aster Co. v. Crane Co., 150 Fed. Rep. 580; Gillespie v. Pocahontas &c. Co., 160 Fed. Rep. 742; Blunt v. Southern Ry. Co., 155 Fed. Rep. 499; Boston Mining Co. v. Montana Ore Co., 188 U. S. 632, 640; In re Winn, 213 U. S. 464; McClellan v. McKane, 159 Fed. Rep. 165; Hooe v. Jamieson, 166 U. S. 395.

No separable controversy was pointed out in said original petition for removal, as required by the decisions. Gibbs v. Crandall, 120 U. S. 105, 108; Gold Washing Co. v. Keyes, 96 U. S. 199; Newcastle v. Postal Co., 152 Fed. Rep. 572.

The claim of separable controversy between said Corn Products Company, and Harding, is so absurd upon a mere cursory reading of the bill of complaint that the Circuit Court should not have considered the same; and

219 U.S.

Argument for Petitioner.

relief by mandamus should not be refused on the ground that a decision of that question involved judicial discretion, although the exercise of judicial discretion on such a question might be required in a case where such question appears to be reasonably disputable.

Even if such separable controversy existed, the citizenship of the alleged parties thereto was not such as to make the case removable, under the law.

The alleged removal was void upon the further ground that the state court was not permitted to examine, and consider, and pass upon, the removal petition.

The order of the Circuit Court ordering the transcript of record of state court filed in Circuit Court, and enjoining Harding from the further prosecution of his suit in the state court, until the further order of the Circuit Court, was void.

The so-called supplement filed in the Circuit Court was inauthorized and void, and did not and could not help out he original removal petition filed in the state court.

Harding is not chargeable with laches. He has never waived his right to have said original motion to remand allowed.

The Circuit Court had no power to allow the amendment to the removal petition changing the vital averments made in said original removal petition filed in the state court. Powers v. Chesapeake & O. R. R. Co., 169 U. S. 92, 101; Shane v. Butte &c. Co., 150 Fed. Rep 801; Crehore v. Railway Co., 131 U. S. 240; Jackson v. Allen, 132 U. S. 27; Graves v. Corbin, 132 U. S. 572, 590; Martin's Admr. v. Railroad Co., 151 U. S. 673, 691, Carson v. Dunham, 121 U. S. 421, 427; Fife v. Whittell, 102 Fed. Rep. 537; Dalton v. Milwaukee Ins. Co., 118 Fed. Rep. 876; Stone v. South Carolina, 117 U. S. 430; Cameron v. Hodges, 127 U. S. 322; Moon on Removal of Causes, § 165: Fitzgerald v. Missouri. Pacific Ry Co., 45 Fed. Rep. 812; Macey Co. v. Macey, 135 Fed. Rep. 725, 729, 730; Santa

Clara County v. Goldy Machine Co., 159 Fed. Rep. 750; Wallenburg v. Missouri Pacific Ry. Co., 159 Fed. Rep. 217; Healy v. McCormick, 157 Fed. Rep. 218; Holton v. Helvitia &c. Co., 163 Fed. Rep. 659; Kinney v. Columbia Assn. Co., 191 U. S. 78; Murphy v. Gold Co., 98 Fed. Rep. 321.

The orders permitting petitioner to amend, and allowing such amendment to be filed, the said amendment so filed, and all subsequent proceedings based thereon, were wholly without power or jurisdiction of the Circuit Court, and void.

It clearly appearing that Harding will be entitled to a remand of his case after a tedious and expensive hearing on the merits, on appeal from whatever decree may be then entered, this should be duly considered by this court, as even the certainty of such ultimate remand does not constitute an adequate remedy in the premises.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

By a motion for leave to file a petition for mandamus, George F. Harding seeks the reversal of the action of the Circuit Court of the United States for the Northern District of Illinois, Eastern Division, in taking jurisdiction over a cause as the result of a refusal to grant a request of Harding to remand the case to a state court. The facts shown on the face of the motion papers are these:

On October 19, 1907, George F. Harding, the petitioner, alleging himself to be a resident of the State of California, sued in an Illinois state court various corporations alleged to be created by and citizens of the State of New Jersey and fourteen individuals whose citizenship and residence were not given. The suit. was brought by Harding as a stockholder in the Corn Products Company, one of the defendants, and the object of the suit was to annul an al

leged unlawful merger of that company and for relief in respect of an asserted misappropriation of its assets. On November 6, 1907, the Corn Products Company applied to remove to the Circuit Court of the United States for the Northern District of Illinois, Eastern Division, on the ground that there was a separable controversy between it and Harding. By separate petitions all the other defendants united in the prayer for removal. The state court not having acted on the petition for removal, the judge of the United States court, upon the application of the Corn Products Company, ordered the transcript of record from the state court to be filed and the case to be docketed. This being done, the Corn Products Company filed what was styled an amendment and supplement to the petition for removal, stating the residence and citizenship of the individuals named as defendants in the original bill, four of them being averred to be residents of Chicago, Illinois, one of Pekin, Illinois, and the others citizens and residents of States other than Illinois.

In December, 1907, Harding moved to remand to the state court, in substance upon the ground that there was no separable controversy and that the requisite diversity of citizenship was not shown by the petition for removal, and especially directed attention to the fact that at the time of the commencement of the suit in the state court he, Harding, was not a resident of the district, and that none of the corporate defendants were such residents.

Prior to the bringing of the Harding suit a suit had been brought in an Illinois state court by the Chicago Real Estate and Trust Company, an Illinois corporation and a stockholder in the Corn Products Company, upon substantially the same grounds as those subsequently alleged in the Harding suit, against the principal corporations and individuals who were thereafter made defendants in the Harding suit. This cause had been removed by the Corn Products Company into the Circuit Court of the United

States for the Northern District of Illinois, Eastern Division, and on its removal, at the instance of the Corn Products Company the court had restrained the real estate company, its officers, agents, attorneys, etc., from further prosecuting the cause in the state court. Immediately after the bringing of the Harding suit in the state court the Corn Products Company applied to the Circuit Court, in the real estate company suit, to restrain Harding from prosecuting his suit on the ground that the bringing of the same was a violation of the previous restraining order. The court issued a temporary restraining order. Thereafter, as we have said, the Harding suit was removed on the application of the Corn Products Company to the Circuit Court of the United States, and the motion to which we have referred was made by Harding to remand. That motion to remand, however, in consequence of the restraining order, which had been made permanent, was not heard until the summer of 1909, after the restraining order above referred to had been dissolved by the Circuit Court of Appeals. 168 Fed. Rep. 658. Before the motion to remand, however, was passed upon the Circuit Court granted permission to the Corn Products Company to amend its removal petition by alleging that at the time of the commencement by Harding of his suit and continuously thereafter he was a citizen of Illinois and a resident of Chicago in that State. To this Harding objected on the ground that the court was without power to allow an amendment, and that its jurisdiction was to be tested by the averments of the original removal petition. The permitted amendment having been filed, the motion to remand was denied. Harding thereupon, reiterating his objection to the allowance of the amendment and to the jurisdiction of the court to do other than remand the cause, traversed the averment in the amended removal petition as to his Illinois citizenship and residence, and specially prayed "that there may be a speedy hearing and a decision of such issue of citizen