Opinion of the Court.

wards as before. In its name, locality, capital stock, the election and power of its officers, in the mode of declaring dividends, and doing all its business, its unity was unchanged. Only the sphere of its operations was enlarged." 12 Wall. 81. This court then expressed its concurrence in the view taken in Baltimore & Ohio Railroad v. Gallahue, 12 Grattan, 655, that the company was suable in Virginia, and decided that it was likewise suable in the District of Columbia, concluding its discussion of the subject by saying, "Looking at the statute alone, and reading it by its own light, we entertain no doubt that it made the company liable to suit, where this suit was brought, in all respects as if it had been an independent corporation of the same locality." 12 Wall. 83, 84.

In Baltimore & Ohio Railroad v. Pittsburg &c. Railroad, (1881,) 17 W. Va. 812, a petition of the Baltimore and Ohio Railroad Company, for the removal into the Circuit Court of the United States of a proceeding for the taking of some of its land for the railroad of a West Virginia corporation, was denied by the courts of West Virginia, upon the ground that the Federal courts could under no circumstances have jurisdiction of such cases. 17 W. Va. 866, 867. That decision is inconsistent with the decisions of this court. Boom Co. v. Patterson, 98 U. S. 403, 407; Union Pacific Railway v. Kansas City, 115 U. S. 1, 19; Searl v. School District, 124 U. S. 197. But (which directly bears upon the question now before us) the highest court of West Virginia, in that case, after referring to the cases in 12 Grattan and in 1 and 3 West Virginia, and quoting at length from the opinion of this court in Railroad Co. v. Harris, including the passages above cited, said: "If this be true, we need not differ as to whether the act of Virginia was a charter to the Baltimore and Ohio Railroad Company, or a license of the character described; the result would be the same in either case; the effect would be to make it, quoad all its bearings [business?], contracts, etc., in West Virginia, liable to suit here, the same as if it were a corporation of West Virginia." 17 W. Va. 875. The decisions in Henen v. Baltimore & Ohio Railroad, 17 W. Va. 881, and Quarrier v. Baltimore & Ohio Railroad, 20 W. Va. 424,

Opinion of the Court.

simply follow that case; and we have been referred to no later decision of that court upon the subject.

There does not appear, therefore, to be such a settled course of adjudication in the courts of West Virginia that the Baltimore and Ohio Railroad Company has been made by the statutes of Virginia a corporation of that State and of the State of West Virginia, as should induce this court, when the question arises under an act of Congress defining the jurisdiction of the courts of the United States, to surrender its own opinion, and to reverse the conclusion at which it deliberately arrived in Railroad Co. v. Harris, and which it has since repeatedly approved. Railway Co. v. Whitton, 13 Wall. 270, 285; Ex parte Schollenberger, 96 U. S. 369, 376; Railroad Co. v. Vance, 96 U. S. 450, 458; Railroad Co. v. Koontz, 104 U. S. 5, 9, 13; Goodlett v. Louisville & Nashville Railroad, 122 U. S. 391, 402, 403.

The Baltimore and Ohio Railroad Company, not being a corporation of West Virginia, but only a corporation of Maryland, licensed by West Virginia to act as such within its territory, and liable to be sued in its courts, had the right under the Constitution and laws of the United States, when so sued by a citizen of this State, to remove the suit into the Circuit Court of the United States; and could not have been deprived of that right by any provision in the statutes of the State. Insurance Co. v. Morse, 20 Wall. 445; Barron v. Burnside, 121 U. S. 186; Southern Pacific Co. v. Denton, 146 U. S. 202, 207.

2. The other objection taken in argument to the validity of the removal of the case into the Circuit Court of the United States is that the petition for removal was not seasonably filed in the state court under the provision of the act of Congress of 1887, by which any party, entitled to remove such a suit from a state court into the Circuit Court of the United States, "may make and file a petition in such suit in such state court at the time, or any time before, the defendant is required by the laws of the State, or the rule of the state court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff." 24 Stat. 554.

Opinion of the Court.

The original summons in this case was issued by the state court on March 3, 1888, returnable at the rules to be held on the first Monday of March, 1888, which was March 5, and was served, as appeared by the officer's return, at 11 A.M. of March 5, the statutes of the State providing that "any process may be executed on or before the return day thereof." W. Va. Code of 1884, c. 124, § 2.

On the record of that court were the following minutes: "March rules, 1888: Declaration filed and common order. April rules, 1888: Common order confirmed and W. E."

The meaning of these minutes is that the plaintiff, having filed his declaration at the rule day on which the summons was returnable, and the defendant having failed to appear on that day, there was thereupon entered in the clerk's office, as authorized by the statutes of the State, a conditional judgment, or judgment nisi, known as the "common order," that judgment be entered for the plaintiff unless the defendant should appear and plead at the next rules; and at April rules, the defendant continuing in default, the clerk entered, pursuant to those statutes, an office judgment, confirming the former one, with an order or writ of enquiry of damages. W. Va. Code, c. 125, §§ 1, 6; 4 Minor's Institutes, 599, 601.

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By the statutes and practice of the State, this office judg ment would, if not set aside, become a final judgment on, and not before, the last day of the next succeeding term. But the defendant might, at any time before the end of that term, appear and plead to issue," that is to say, answer to the merits of the action, either by plea in bar, or by demurrer; and, if he did so appear and plead within that time, the office judgment, not having been entered up in court, nor the writ or order of enquiry executed, would be set aside as of course, and the case stand for trial upon the merits. In short, either judgment in the clerk's office was merely a formal judgment of default, not affecting the defendant's absolute right to interpose any defence upon the merits. But at a subsequent term, or if the office judgment had been confirmed by the court, or the writ of enquiry executed, he could not, without leave of court, file any plea whatever. A plea to the juris

Opinion of the Court.

diction, or in abatement, if it could have been filed after the common order or conditional judgment in the clerk's office, certainly could not be filed, without special leave of the court, after the office judgment confirming that order; and therefore, in this case, upon the most liberal construction possible, not after the April rules. W. Va. Code, c. 125, §§ 16, 46, 47; 4 Minor's Institutes, 601, 605; Resler v. Shehee, 1 Cranch, 110; Furniss v. Ellis, 2 Brock. 14; Hinton v. Ballard, 3 W. Va. 582; Delaplain v. Armstrong, 21 W. Va. 211.

The defendant's petition for the removal of the case into the Circuit Court of the United States was not filed at the rules, either in March or in April. But it was afterwards filed in and heard by the state court before the end of the April term. It was therefore filed at or before the time at which the defendant was required by the laws of the State to answer or plead to the merits of the case, but after the time at which he was required to plead to the jurisdiction of the court, or in abatement of the writ.

Was this a compliance with the provision of the act of Congress of 1887 which defines the time of filing a petition for removal in the state court? We are of opinion that it was not, for more than one reason. This provision allows the petition for removal to be filed at or before the time when the defendant is required by the local law or rule of court "to answer or plead to the declaration or complaint." These words make no distinction between different kinds of answers or pleas; and all pleas or answers of the defendant, whether in matter of law by demurrer, or in matter of fact, either by dilatory plea to the jurisdiction of the court or in suspension or abatement of the particular suit, or by plea in bar of the whole right of action, are said, in the standard books on pleading, to "oppose or answer" the declaration or complaint which the defendant is summoned to meet. Stephen on Pleading, (1st Am. ed.,) 60, 62, 63, 70, 71, 239; Lawes on Pleading, 36. The Judiciary Act of September 24, 1789, c. 20, § 12, required a petition for removal of a case from a state court into the Circuit Court of the United States to be filed by the defendant "at the time of entering his appearance in

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such state court." 1 Stat. 79. The recent acts of Congress have tended more and more to contract the jurisdiction of the courts of the United States, which had been enlarged by intermediate acts, and to restrict it more nearly within the limits of the earliest statute. Pullman Car Co. v. Speck, 113 U. S. 84; Smith v. Lyon, 133 U. S. 315, 320; In re Pennsylvania Co., 137 U. S. 451, 454; Fisk v. Henarie, 142 U. S. 459, 467; Shaw v. Quincy Mining Co., 145 U. S. 444, 449.

Construing the provision now in question, having regard to the natural meaning of its language, and to the history of the legislation upon this subject, the only reasonable inference is that Congress contemplated that the petition for removal should be filed in the state court as soon as the defendant was required to make any defence whatever in that court, so that, if the case should be removed, the validity of any and all of his defences should be tried and determined in the Circuit Court of the United States.

As the petition for the removal of this case into the Circuit Court of the United States was not filed in the state court within the time mentioned in the act of Congress, it would follow that, if a motion to remand upon that ground had been made promptly and denied, the judgment of the Circuit Court. of the United States must have been reversed, with directions to remand the case to the state court. Edrington v. Jefferson, 111 U. S. 770; Baltimore & Ohio Railroad . Burns, 124 U. S. 165.

3. But the record, as appears by the statement of the material parts thereof at the beginning of this opinion, not only does not show that any such objection to the removal was made, either in the state court or in the Circuit Court of the United States, but clearly implies that it was not, and that the only objection made in either court to the jurisdiction of the Circuit Court of the United States was that the defendant, as well as the plaintiff, was a citizen of West Virginia; and the assignment of error in this respect is expressly so limited.

The question therefore arises whether the objection to the time of filing the petition for removal can be raised for the