GOODNOW v. GBLYSONQ 3
If Mrs. Litchfield had invoked theaction of the lstate court, and
upon its refusal to transfer the cause she had then endeavored to '
protect herrights in the state court, she would not have forfeited her
right of removal. She would then be within the protection of the
rule recognized in Railroad O0. v; Koontz, 103 YU. S. 5L “Under the
facts, however, of this case, it must be held that Mrs. {Litchfield never
perfected the removal of thecause, but, on the contrary, that she aban-
» doned her petition for removal, and fully recognized and submitted ‘
to the jurisdiction of thestate court. This is further evidenced by
the fact that the administrator did not rely upon: the petition for ·
removal Bled by Mrs. Litchdeld, but after his appointment he Bled a L
second and independent petition. .Under these circumstances it is
clear that the cause · has not been removed to this court by virtue of
the petition filed during the life-time of Mrs. Litchfield. I V ·
t 2. Has this court obtained jurisdiction throught the action of the ad- °
ministrator, who has filed a petition asking;. removal under clause
3 of section 639 of the Revised Statutes? The theory uponlwhich
this petition proceeds is that the controversy, when the suit was
commenced, was in fact between the Iowa I·Iomestead‘Company, a
corporation organized under the laws of Iowa, and Grace H. Litchfield,
a citizen of New York, the transfer and assignment of the cause of
action to E. K. Goodnow being colorable only; and that, as the real
parties in interest-were citizens of different states, the cause was re-
movable under clause 3 of section 639 of the Revised Statutes, at any
time before the final trial, and that the death of Mrs. Litchfield and A
the substitution of her administrator did not defeat the right *of re- ,
moval, even if the administrator is a citizen of Iowa.
As presented by counsel, the question for determination, therefore,
resolves itself into the following; `
If A., a citizen of Iowa, sues B., a citizen of New York, ina state court in
. Iowa, for an amount in excess of $500, and B. joins issue therein, and the
cause is continued over several terms, no application for a removal of the
cause to the federal court having been made, aud before trial B. dies,.and
thereupon C., a citizen of Iowa, is appointed administrator of B.'s estate, and
is substituted as defendant in the cause, can C., as administrator, remove _
the cause into the federal court, under clause 3 of section G39? .
It is settled that under the act of 1789, when the right of removal
is dependent upon the citizenship of the parties, such diverse citizen-
ship must exist at the time the suit was commenced. Ins. Oo. v. _
Pechner, 95 U. S. 183. The same construction is applied when the