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 & 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 of the statutes incorporating the defendant in Virginia and in this state, and being of opinion that said Baltimore & 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 & Ohio Railroad Company was a nonresident of West Virginia, and entitled to remove.' 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: (1) That the Baltimore & Ohio Railroad Company was a resident corporation of the state of West Virginia; (2) that the application to the state court for removal was not made in time.