Page:Federal Reporter, 1st Series, Volume 9.djvu/807

792 FEDERAL REPORTER. �Attention has been particularly called to the provisions of section 5 of the act of March 3, 1876, to determine the jurisdiotion of the cir- cuit courts, etc. ; 18 St. at Large, 470, (Supt. Eev. St. 17.5,) enacting: �" That if, in any suit comraenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively oiade or joined, either as plaintifls or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just," etc. �Speaking of this section, Johnson, J., in Warner v. Pennsylvania R. Go. 13 Blatchf. 231, said: "AU that is neeessary to bring the case really and substantially within the jurisdiction is, that it in- volves a controversy of the character, either as to the subject-matter or the parties, speciaed in either the section which defines the juris- diction by original suit, or that which authorizes removal, and the acquisition of jurisdiction in that manner." As before stated and shown, the parties to this suit are citizens of different states, and the suit is one of which this court has jurisdiction for that reason, if the orators can make ont the case presented by their bill, including the refusai of the directors to prosecute as a part of their case; if they cannot they have no case. That part of their case, as also before shown, has not been denied in the neeessary manner by answer to be effective to defeat the case upon that point, and there is no evidence before the court, upon that or any other point, to make it appear at all that parties have been either improperly or collusively made or joined for the purpose of creating a case within the jurisdiction. There is nothing before the court now on which the court is author- ized to act under the provisions of that section. �The pleas and demurrer are overruled ; the defendants to answer over by the first day of next term. ��� �