the case to the federal court on the ground of diverse citizenship, under the provisions of the enabling act.
(Opinion Filed February 2, 1891.)
APPLICATION to remove cause to United States circuit court.
White & Hewit for applicant.
Corliss, C. J. The plaintiff and respondent has filed a written request for the transfer of this cause to the proper federal court under the provisions of the enabling act. We find ourselves powerless to bring plaintiff back to the point of divergence, that it may again choose its future route in the course of this litigation. With the admission of this state into the federal Union, there were laid out before plaintiff by the omnibus bill two paths, running so diversely that the selection and pursuit of one must forever preclude the choice of the other. Had plaintiff chosen the federal path in proper time, the facts disclosed by its written request on this application would have entitled plaintiff to select that route. Diverse citizenship, both at the commencement of the action and at the time of the application, is shown. Both parties were corporations, but corporations are citizens, within the meaning of the statutes conferring jurisdiction on the federal courts on the ground of diverse citizenship. Wisconsin v. Insurance Co., 127 U. S. 265, 8 Sup. Ct. Rep. 1370. It is true that one of the parties, the defendant, was not a citizen of the state of North Dakota at the time the action was instituted, but it was at that time a citizen of the territory of Dakota, and that portion thereof out of which the state was afterwards erected; and the spirit of the enabling act is to regard the state as admitted, and the federal court as in existence at the time of the commencement of the action for the purpose of determining the right of either party to transfer the cause to the proper federal court. The plaintiff, however, has proceeded upon the highway of state jurisdiction. Subsequently to admission, plaintiff argued the defendant’s appeal in this court, and, having been defeated, plaintiff applied for and obtained a rehearing, and moved for and secured a continuance of the reargument to a later day in the term.
