November 2, 1931
FIDELITY & DEPOSIT CO. OF MARYLAND
Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The issues presented on this appeal were disposed of in Fidelity & Deposit Co. of Maryland v. Burden, 30 F.2d 610, except that since our decision an application was made in the District Court to remand the case to the state court, which was denied. The cause was removed to the federal court because of the claimed existence of a diversity of citizenship and the requisite amount involved in the controversy giving jurisdiction to the court. The appellant proceeded to trial on the merits without protest. The court below held that this was an acquiescence in the jurisdiction of the person so as to forfeit the privilege which might have existed to remand the cause to the state court. With that determination, we agree. Matter of Moore, 209 U.S. 490, 28 S. Ct. 585, 706, 52 L. Ed. 904, 14 Ann.Cas. 1164; Mackay v. Uinta Co., 229 U.S. 173, 33 S. Ct. 638, 57 L. Ed. 1138; Bailey v. Texas Co., 47 F.2d 153 (C.C.A. 2). The other issues are affirmed on the authority of Fidelity & Deposit Co. v. Burden, supra.
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