On the 23d of July, 1903, in a court of the state of Kansas, William H. Weldon, a citizen of that state, sued D. G. Fritzlen and his wife, Edna, also such citizens, and the Boatmen's Bank, a corporation organized under the laws, and a citizen of, Missouri. The cause of action against the Fritzlens was a note for $3,750, dated July 2, 1903, maturing in ten days, alleged to be secured by mortgages covering described real estate and certain live stock. The bank was made a defendant upon the averment that it claimed to have a mortgage on the real estate and personal property which secured the note sued on, and this alleged mortgage was asserted to be illegal and void, and, in any event, to be 'junior and subordinate to the right, title, interest, and lien of this plaintiff.' Judgment for the amount of the note, with interest, was prayed, as also that the mortgage securing the same be decreed to be a first and prior lien over all others on the property; that so much of the property as was necessary be sold to satisfy the judgment; and that 'the pretended claim, lien, and interest of the said defendant the Boatmen's Bank be declared to be illegal and void.' Summons by publication was made, calling upon the bank to answer before September 4, 1903. On July 30 Weldon applied for a temporary injunction, preventing the defendants, pending the suit, from removing any of the property beyond the jurisdiction of the court, and a restraining order was allowed. On August 13, 1903, the bank demurred to the petition, because facts adequate to establish that the mortgage by it held was invalid were not averred, and because two distinct causes of action were unlawfully joined,-the one to enforce the alleged mortgage against the Fritzlens, and the other assailing the rights of the bank. On the day the demurrer was filed, the bank, giving the necessary bond, asked removal of the cause to the circuit court of the United States for the district of Kansas, on the ground that the controversy as to the validity of its mortgage was separable from the controversy concerning the enforcement of the alleged mortgage against the Fritzlens, and, additionally, because of local prejudice. On September 14 the circuit court of the United States, presided over by Lochren, J., overruled motions to remand made by Fritzlen and Weldon, the court basing its action upon the separable nature of the controversies, and not considering the ground of local prejudice, and on that day the court dissolved the restraining order previously allowed by the state court. A copy of the order refusing to remand was filed in the state court. On the 9th of October, 1903, in the United States district court for the district of Kansas, the bank brought an action of replevin for the possession of the personal property embraced in its mortgage, and the marshal, under a writ of replevin, took and delivered the property to the bank. More than six months after the order refusing to remand, the circuit court of the United States for the district of Kansas, presided over by Pollock, J., granted a motion of Weldon to remand the cause to the state court. In making this order the court considered that the prior refusal to remand was not binding upon it, because it deemed the question of jurisdiction to be always open, and it was its plain duty to decline to take jurisdiction over a cause if the power to entertain it did not obtain. 128 Fed. 608.