Syllabus.

MARTIN'S ADMINISTRATOR v. BALTIMORE AND OHIO RAILROAD COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF WEST VIRGINIA.

No. 67. Argued November 6, 1893. - Decided February 5, 1891.

Under the provision of the act of March 3, 1887, c. 373, authorizing an action, brought in a court of a State between citizens of different States, to be removed into the Circuit Court of the United States "by the defendant or defendants therein, being nonresidents of that State," a defendant corporation must be created by the laws of another State only, in order to entitle it to remove the action; and if it is such a corporation, and has not been also created a corporation by the laws of the State in which an action is brought against it by a citizen thereof, it may remove the action, even if it has been licensed by the laws of the State to act within its territory, and is therefore subject to be sued in its courts.

Statutes of a State, creating railroad corporations, or licensing them to exercise their franchises within the State, if deemed by the courts of the State public acts of which they take judicial notice without proof, must be judicially noticed by the Circuit Court of the United States sitting within the State, and by this court on writ of error to that court. The Baltimore and Ohio Railroad Company is a corporation of the State of Maryland only, though licensed by the State of West Virginia to act within its territory, and liable to be sued in its courts; and may therefore remove into the Circuit Court of the United States for the District of West Virginia an action brought against it in a court of the State of West Virginia by a citizen thereof.

Under the provision of the act of March 3, 1887, c. 373, by which a petition for the removal of an action from a court of a State into the Circuit Court of the United States is to be filed in the state court at or before the time when the defendant is required by the laws of the State, or by rule of the state court, "to answer or plead to the declaration or complaint of the plaintiff," the petition should be filed as soon as the defendant is required to make any defence whatever, either in abatement or on the merits, in that court.

The objection that the Circuit Court of the United States has no jurisdiction of a case removed into it from a state court, because the petition for removal was filled too late in the state court, is waived if not taken until after the case has proceeded to trial in the Circuit Court of the United States, and cannot be taken for the first time in this court on writ of error to that court.

VOL. CLI-43

Opinion of the Court.

The question, whether a cause of action survives to the personal representative of a deceased person, is a question not of procedure, but of right; and, when the cause of action does not arise under a law of the United States, depends upon the law of the State in which the suit is brought.

By the law of West Virginia, an action for a personal injury abates by the death of the person injured.

If, after verdict and judgment for the defendant in the Circuit Court of the United States in an action the cause of which does not survive by law, and pending a writ of error in this court upon the plaintiff's exceptions to the rulings and instructions at the trial, the plaintiff dies, the action abates and the writ of error must be dismissed.

THE case is stated in the opinion.

Mr. Daniel B. Lucas for plaintiff in error.

Mr. John K. Cowen for defendant in error.

MR. JUSTICE GRAY delivered the opinion of the court.

This was an action of trespass on the case, brought March 1, 1888, in the circuit court of Berkeley County in the State of West Virginia, by John W. Martin against the Baltimore and Ohio Railroad Company, to recover damages in the sum of $10,000 for personal injuries caused to the plaintiff by the defendant's negligence at Bayview in the State of Maryland on May 22, 1887.

On April 12, 1888, the defendant filed in that court a petition, with proper affidavit and bond, for the removal of the case into the Circuit Court of the United States for the District of West Virginia, upon the ground that at the commencement of the suit and ever since the plaintiff was a citizen of West Virginia and the defendant a corporation and citizen of Maryland. On April 24, 1888, the plaintiff was permitted by the state court, against the defendant's objection, to file an answer to the petition for removal, denying that the defendant was a nonresident corporation, and alleging that it was, for all the purposes of this suit, a resident of West Virginia, and therefore not entitled to remove the case; and the court, upon a hearing on that petition and answer, "taking judicial notice

Opinion of the Court.

of the statutes incorporating the defendant in Virginia and in this State, and being of opinion that said Baltimore and Ohio Railroad Company is not a nonresident corporation," refused to allow the removal.

But the Circuit Court of the United States, on June 11, 1888, upon the production by the defendant of a duly certified copy of the record of the above proceedings, ordered the case to be docketed in that court; and on July 23, 1888, ordered it to be removed into that court.

On December 13, 1888, the plaintiff filed in that court a plea (called in the record a plea in abatement) that it ought not to take further cognizance of the action, because before and at the time of the removal the defendant "was and is now a resident of the District of West Virginia, and is therefore not entitled to remove said action" to that court. A demurrer to that plea was filed by the defendant, and sustained by the court. "And thereupon," as the record stated, "the plaintiff moved to remand this action to the circuit court of Berkeley County, which motion the court overruled."

The defendant then pleaded not guilty. Upon the issue joined on this plea, the case was tried by a jury, the plaintiff and other witnesses testified in his favor, a verdict was rendered for the defendant under instructions of the court, and judgment was rendered upon the verdict.

The plaintiff duly excepted to those instructions, and sued out this writ of error, which was entered in this court on January 13, 1890, together with an assignment of errors, in which the only error assigned to the sustaining of the demurrer to the plaintiff's plea, or to the denial of his motion to remand, was as follows: "The Circuit Court erred in sustaining the demurrer of the said defendant in error to the plaintiff's plea in abatement, and in overruling the motion of the plaintiff in error to remand the said cause to the state court whence it had been removed to said Circuit Court of the United States, thus deciding, both in sustaining said demurrer and in overruling said motion, that the Baltimore and Ohio Railroad Company was a nonresident of West Virginia and entitled to remove."

Opinion of the Court.

The other errors assigned were in rulings and instructions at later stages of the case, which it will not be necessary to consider.

At the present term of this court, the plaintiff's death was suggested, and Gerling, his administrator, appointed by the county court of Berkeley County in West Virginia, came in to prosecute in his stead; and the defendant moved to dismiss the writ of error, because an action for personal injuries abated by the death of the plaintiff.

It was argued, in behalf of the administrator, that the removal from the state court gave the Circuit Court of the United States no jurisdiction of this case, for two reasons: 1st. That the Baltimore and Ohio Railroad Company was a resident corporation of the State of West Virginia; 2d. That the application to the state court for removal was not made in time.

The consideration of this argument naturally takes prece dence; because, if the courts of the United States never lawfully acquired jurisdiction of the case, they have no rightful power to determine any question of the liability of the defendant, or of the right of the original plaintiff in his lifetime, or of his administrator since his death, to maintain this action, but all such questions can only be determined in the courts of the State in which the action was brought; and, therefore, if the Circuit Court of the United States had no jurisdiction of the case, its judgment should be reversed for want of jurisdiction, with directions to remand the case to the state court, without passing upon the right to maintain the action in a competent tribunal.

1. The act of March 3, 1887, c. 373, which was in force at the time of the removal of this case, authorized any civil action. brought in a court of a State between citizens of different States, and in which the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2000, to be removed into the Circuit Court of the United States "by the defendant or defendants therein, being nonresidents of that State." 24 Stat. 552. In order to be a "nonresident of that State," within the meaning of this statute, the defendant must be a

Opinion of the Court.

citizen of another State, or a corporation created by the laws of another State. McCormick Co. v. Walthers, 134 U. S. 41; Shaw v. Quincy Mining Co., 145 U. S. 444; Southern Pacific Co. v. Denton, 146 U. S. 202; Martin v. Snyder, 148 U. S. 663.

A railroad corporation, created by the laws of one State, may carry on business in another, either by virtue of being created a corporation by the laws of the latter State also, as in Railroad Co. v. Vance, 96 U. S. 450; Memphis & Charleston Railroad v. Alabama, 107 U. S. 581; Clark v. Barnard, 108 U. S. 436; Stone v. Farmers' Co., 116 U. S. 307; and Graham v. Boston, Hartford & Erie Railroad, 118 U. S. 161; or by virtue of a license, permission or authority, granted by the laws of the latter State, to act in that State under its charter from the former State. Railroad Co. v. Harris, 12 Wall. 65; Railroad Co. v. Koontz, 104 U. S. 5; Pennsylvania Railroad v. St. Louis &c. Railroad, 118 U. S. 290; Goodlett v. Louisville & Nashville Railroad, 122 U. S. 391; Marye v. Baltimore & Ohio Railroad, 127 U. S. 117. In the first alternative, it cannot remove into the Circuit Court of the United States a suit brought against it in a court of the latter State by a citizen of that State, because it is a citizen of the same State with him. Memphis & Charleston Railroad v. Alabama, above cited. In the second alternative, it can remove such a suit, because it is a citizen of a different State from the plaintiff. Railroad Co. v. Koontz, above cited.

Whether the Baltimore and Ohio Railroad Company had the right to remove into the Circuit Court of the United States this action, brought against it by a citizen of West Virginia in a court of that State, therefore depends upon the question whether this company was a corporation created by the laws of Maryland only, or by the laws of West Virginia also.

This company, as is admitted, was originally incorporated by the statute of Maryland of February 28, 1827, (1826, c. 123,) entitled "An act to incorporate the Baltimore and Ohio Railroad Company," by which subscriptions to its capital stock were to be received by commissioners therein appointed,