Opinion
Civ. A. No. 29671.
January 21, 1953.
Jones, Day, Cockley Reavis, Cleveland, Ohio (Luther Day, Cleveland, Ohio, of counsel), for plaintiff.
Corrigan, MacMahon Corrigan, Cleveland, Ohio (William J. Corrigan and Moses Krislov, Cleveland, Ohio, and William J. Isaacson, New York City), for defendants.
On application for Rehearing.
Denying Reconsideration, D.C., 114 F. Supp. 185.
The arguments submitted in defendants' brief in support of their motion for a reconsideration are but restatements of arguments previously submitted. In their reargument defendants imply that the Sixth Circuit Court of Appeals in Direct Transit Lines v. Local Union No. 406, 199 F.2d 89, approved the proposition that a District Court may remove a case even though it is without jurisdiction to hear and determine the case on its merits. The court's opinion does not support this claim. The Court of Appeals commented upon In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873, and among other things said: "The ultimate test was said to be whether the action could have been originally brought in the federal court. If so, jurisdiction should be retained." [199 F.2d 90.] The view expressed by this court in its original memorandum that "Jurisdiction to remove a case from state courts rests upon the District Court's jurisdiction to hear and decide the case so removed" [ 114 F. Supp. 190] is consistent with the above-quoted statement from Direct Transit Lines.
Defendants' application for reconsideration is overruled.