FIDELITY & DEPOSIT CO. OF MARYLAND v. BURDEN

FIDELITY & DEPOSIT CO. OF MARYLAND v. BURDEN. Nos. 26, 27. Circuit Court of Appeals, Second Circuit. Nov. 2, 1931. Thomas E. White, of New York City (Joseph F. Murray, of New York City, of counsel), for appellant. Marshall, Wehle & Hinckley, of New York City (J. Markham Marshall, of New York City, of counsel), for appellee. Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. 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 eourt because of the claimed existence of a diversity of citizenship and the requisite amount involved in the controverey 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. Judgment affirmed.