petition for rehearing granted and former dismissal vacated: January 28, 1918.
SOUTHERN PACIFIC COMPANY
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke
[ 245 U.S. Page 562]
Memorandum opinion by direction of the court, by MR. JUSTICE DAY.
The opinion in this case was handed down on December 17, 1917 (ante, 359). The cause was submitted on a motion to dismiss which was sustained. The printed record did not contain the proceedings upon the application to remove the cause from the state court. The briefs of counsel upon both sides, upon which the case was submitted, stated that the case was removed because of diversity of citizenship. Treating these statements as the equivalent of a stipulation the court decided the case and rendered judgment. It now appears by a certified copy of the record on removal, filed by the plaintiff in error, that the removal petition contained an allegation that the complaint alleged a cause of action arising under the Interstate Commerce Act, and this fact, as well as diversity of citizenship, was made a ground of removal.
[ 245 U.S. Page 563]
In this view it follows that as our order of dismissal rested upon the assumption that the removal was because of diversity of citizenship only, the petition for rehearing must be granted, the order of dismissal set aside, and the cause restored to the docket.
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