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MARTIN'S ADMINISTRATOR V. BALTIMORE & OHIO R. CO., 151 U. S. 673 (1891)
U.S. Supreme Court
Martin's Administrator v. Baltimore & Ohio R. Co., 151 U.S. 673 (1894)
Martin's Administrator v. Baltimore
and Ohio Railroad Company
Argued November 6, 1893
Decided February 5, 1891
151 U.S. 673
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 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 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 defense 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 filed 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.
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.
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