Moeller

This action was commenced against the defendant Southern Pacific'Company joined with two of its employés and two defendants sued by fictitious names. Before the trial, upon motion of the plaintiff, the action was dismissed as to the two fictitious defendants; and at the trial, upon plaintiff’s resting its pre'liminary case, the court, upon motion of the defendants, granted a nonsuit as to the two defendant employés for want of evidence to go to the jury as to them; the plaintiff stating that, while he should not oppose the motion, he would not consent thereto. Thereupon the defendant company, being a Kentucky corporation,. and the plaintiff a citizen and resident of the state of California, filed a petition and bond, upon due notice, for the removal of the cause to this court upon the ground of diversity of citizenship; and the cause was so removed. The plaintiff has now moved to remand the cause to the state court upon the ground that it does not present a case properly removable to this court upon the ground stated.

Upon the facts, the case is not to be distinguished from that of Whitcomb v. Smithson, 175 U. S. 635 , 20 Sup. Ct. 248, 44 L. Ed. 303 , held not to be a removable…