Chas. Dealy, of Pipestone, Minn., and Fred. H. Free, of Sioux City, Iowa, for plaintiffs.

Hall & Gislason, of Marshall, Minn., Frank L. Brady, of Lake Benton, Minn., and Brown, Somsen & Sawyer, of Winona, Minn., for defendant Walter L. Mann.

JOHN B. SANBORN, District Judge. It appears that there is diversity of citizenship between the plaintiffs and all of the defendants, and that more than $3,000 is involved, but that the defendants did not join in the petition for removal, and that some of them are residents of the state of Minnesota; that the case was therefore improperly removed to this court; that at the time of its removal there was an attachment issued out of the state court; that this attachment was continued in effect after removal, and, with the consent of all parties, the sheriff of Lincoln county, who levied the attachment, sold some of the attached property; that the defendants noticed the case for trial at the June term of this court in the Second division; that the plaintiffs admitted due service of the notice of trial; that the case was not tried and is still pending; that on June 12, 1928, the plaintiffs informed the defendant Walter L. Mann that a motion to remand would be

made, and it was agreed that no laches would be claimed for delay in making such motion

after that date.

The case was removed on or about October 22, 1927, and the motion must be treated as having been made June 12, 1928. The sole question presented is whether the motion comes too late-in other words, whether the plaintiffs, by their conduct or neglect, must be held to have consented and acquiesced to a trial of the cause by this court.

[1] The general rule seems to be that, where a federal court would have jurisdiction of a cause which has been commenced in a state court and improperly removed to the federal court, the plaintiffs may, by waiver, acquiescence, or consent, lose the right to have the case remanded because of matters not involving the jurisdiction of the federal court. Handley-Mack Co. v. Godchaux Sugar Co. (C. C. A.) 2 F. (2d) 435; Guarantee Co. v. Hanway (C. C. A.) 104 F. 369; White v. Chase (C. C. A.) 201 F. 896; Toledo, St. L. & W. R. Co. v. Perenchio (C. C. A.) 205 F. 472; Fienup v. Kleinman (C. C. A.) 5 F.

(2d) 137. No general appearance was made by the plaintiffs in this court, unless it could be held that the admission of due service of the notice of trial constituted such an appear

ance.

[2] While the language in some of the cases dealing with the subject appears broad enough to permit this court to retain jurisdiction of this case because of the delay of the plaintiffs in moving to remand, a careful consideration of them in connection with their facts leads me to the conclusion that, where there is no express waiver or consent to submit to the jurisdiction of the federal court, it is only such conduct, on the part of those seeking the remand, as might reasonably be said to estop them from denying that they had consented, which would prevent a remand. They must ordinarily have done something or enjoyed something which would make it inequitable or unfair to permit them to assert their right to a remand of the cause. In many of the cases, trials were had and judgments entered; in others, some form of equitable relief had been obtained; in still others, the remand of the cause at the time of the motion would have put those who had removed it in a worse position than they would have been in, had a prompt remand been asked. [3] Where no injury will be done to any one, where the federal court has been asked for no relief, where no actual consent to its jurisdiction has been obtained, and where there has been nothing but mere delay, without any showing of prejudice resulting therefrom, I am of the opinion that a party who has improperly removed such a case as this can have no just cause for complaint, if it is sent back to the court where it was commenced. He is simply required to forego some real or fancied advantage in the matter of jurisdiction to which he was not entitled under the law. [4] In this case, the attachment was issued out of the state court, and in a sense the plaintiffs were under the protection of this court-that is, they could have invoked its protection if they needed it; they could have tried their case here, but they did not. This court has done nothing substantial for them. My opinion is that there is nothing in the circumstances presented in connection with this motion which would require this court to retain jurisdiction.

The motion to remand is granted.

Revenue.

District Court, W. D. Pennsylvania. December 7, 1927.

No. 3596.

Internal revenue ~8 (5)-Life insurance total. ing $300,000 held improperly included in estate for estate tax purposes, where policies aggregating $270,000 antedated taxing statute (Revenue Act 1918).

Proceeds of life insurance policies on de. cedent's life, aggregating $300,000, held improperly included in decedent's estate for estate

tax purposes, under Revenue Act 1918 (40 Stat. 1057), where policies aggregating $270,000 antedated the act, which exempts insurance up to $40,000 from terms thereof.

At Law. Action by Elliot C. Grandin, administrator d. b. n. c. t. a. of the last will of William James Grandin, deceased, against D. B. Heiner, Collector of Internal Revenue for the Twenty-Third District of Pennsylvania. Judgment for plaintiff. Smith, Shaw & McClay, of Pittsburgh, Pa., for plaintiff.

J. D. Meyer, U. S. Atty., of Pittsburgh, Pa., for defendant.

SCHOONMAKER, District Judge. A jury trial having been waived, this case was tried before the court without a jury.

Findings of Fact.

William James Grandin died testate on the 30th day of December, 1920, domiciled in Tidioute, Warren county, Pa., and letters testamentary were duly issued to the plaintiff in this case, Elliot C. Grandin, who qualified as administrator d. b. n. c. t. a., and who is now acting in that capacity.

On August 26, 1921, the executors of said estate, pursuant to the requirements of the Revenue Act of 1918 (40 Stat. 1057), duly filed a return for federal estate tax with the collector of internal revenue on form 706. In schedule C of said return, the executor listed as assets of the estate of William James

ance policies, payable to Harriet C. Grandin, as beneficiary: Three policies in the Travelers' Insurance Company for $10,000 each, one dated December 31, 1894, and two dated July 30, 1919; in addition thereto, one policy in the Equitable Life Assurance Society, dated December 31, 1906, in the sum of $250,000 or a total of $300,000. On this total sum, the defendant, as collector of internal revenue, levied and collected from the executors an estate tax amounting to $5,219.26. On August 26, 1921, the executors paid, under protest, the said sum of $5,219.26. Due claim for refundment of this estate tax was filed by the executors of this estate, but the same has not been paid back.

Conclusion of Law.

Under this state of facts, we find that the plaintiff is entitled to recover from the defendant the amount of this tax assessed upon these policies of insurance, together with interest. An order for judgment may be entered accordingly.

Discussion.

Under the ruling of Judge Thomson, of this district, in the case of Frick v. Lewellyn, 298 F. 803, we hold that these policies of insurance were not properly included within the estate of the decedent, subject to estate tax. It may be noted that this decision of Judge Thomson was affirmed in Lewellyn v. Frick, 268 U. S. 238, 45 S. Ct. 487, 69 L. Ed. 934, holding the act to be inapplicable, because the policies antedated the passage of the taxing act, but not passing upon the question of the constitutionality of the act itself. In the instant case it may be noted that two of the policies in question, aggregating $270,000 in amount, do antedate the act, and therefore fall strictly within the Supreme Court ruling, and further that insurance up to $40,000 is exempted from the provisions of the act by its own terms.

ance on life of decedent, which were issued at various dates from October 7, 1904, to April

1928.

No. 5623.

Internal revenue 8(1)-Estate tax resulting from inclusion in estate of proceeds of life insurance policies issued before April 16, 1919, held illegally collected (Revenue Act 1926, § 302(g); 26 USCA § 1094 (g).

Estate tax exacted by reason of inclusion in decedent's estate of amounts receivable by beneficiaries as insurance under life insurance policies on decedent's life, which were issued between October 7, 1904, and April 16, 1919, held illegally collected under Revenue Act 1926, § 302(g), 26 USCA § 1094(g).

At Law. Action by Anna R. D. Gillespie and others, executors of the estate of David L. Gillespie, deceased, against Daniel B. Heiner, Collector of Internal Revenue for the Twenty-Third District of Pennsylvania. Judgment for plaintiffs.

plaintiffs are entitled to recover it back. Let an order for judgment be submitted accordingly.

MONTGOMERY COUNTY NAT. BANK v. NATIONAL SURETY CO. et al.

District Court, D. Kansas, Third Division. July 17, 1928.

No. 791.

Insurance 425-Fidelity surety held not llable for robbery loss after employee terminated employment, though he participated in conspiracy to rob previously hatched.

Surety on fidelity bond to indemnify bank against loss resulting from its president's dishonesty, fraud, or theft held not liable for loss resulting from robbery committed after said

J. D. Meyer, U. S. Atty., and W. J. Aiken, Asst. U. S. Atty., both of Pittsburgh, Pa., and J. A. McCann, Sp. Asst. Bureau of Internal Revenue, of Washington, D. C., for

defendant.

SCHOONMAKER, District Judge. This is an action to recover an estate tax of $69,362.90, alleged to have been illegally exacted under the provisions of section 302(g) of the Revenue Act of 1926 (26 USCA § 1094 (g), as a tax on several amounts receivable by beneficiaries as insurance under policies taken out by the decedent in his lifetime to the extent of the excess thereof over $40,000. By stipulation the case was heard without a jury upon the statement of claim and the affidavit of defense, which admits all the allegations of fact in the statement of claim and merely denies the legal conclusions as to the claim right of the plaintiff to recover.

This case presents precisely the same question that was decided by Judge Thomson, of this district, in the case of Frick v. Lewellyn, 298 F. 803, affirmed 268 U. S. 238, 45 S. Ct. 487, 69 L. Ed. 934; and in the case of Grandin v. Heiner, 27 F. (2d) 454, which we decided on December 7, 1927, at 3596 Law.

Under these authorities we hold that this tax of $69,362.90, exacted of the plaintiff by reason of the inclusion in the estate of the decedent of the amounts receivable by beneficiaries as insurance under policies of insur

bank, even if he participated in the conspiracy to rob, and conspiracy was hatched while bond was in force.

At Law. Action by the Montgomery County National Bank against the National Surety Company and another. On motion to strike allegations in plaintiff's second amended petition. Motion granted.

Bertenshaw & Veeder, of Independence, Kan., for plaintiff.

Henry L. Jost, of Kansas City, Mo., for defendant National Surety Co.

MCDERMOTT, District Judge. The defendant issued its fidelity bond on one Geo. C. Robertson, the then president of the plaintiff, by which it agreed to "indemnify officers of Montgomery County National Bank, of Cherryvale, Kansas (employer), against the loss of any money or other personal property (including money or other personal property, for which the employer is responsible), through the fraud, dishonesty, forgery, theft, embezzlement, or wrongful abstraction of any employee named in the schedule attached or added thereto by acceptance notice, in the performance of the duties of any position anywhere in the employer's service, alone or in connivance with others, while this bond is in force as to such employee."

The agreement further provided: "In the event of the death of any employee during the term of this bond, or of the suspension,

dismissal, or retirement of any employee from the service of the employer during said term, or upon any employee entering into partnership relations with the employer, this bond shall thereupon terminate automatically as to such employee without any action on the part of the surety."

The second amended petition alleges that Robertson ceased to be president of the bank, or in its employ, on January 5, 1926. Therefore, on that date, the liability of the defendant for any acts of Robertson thereafter terminated. This is the plain language of the contract; no rules of construction, or authorities bearing upon construction of this class of contracts, are needed, for there is no room for construction. Courts do not make contracts; they enforce them.

On May 26, 1926, the bank was robbed, and it is alleged that Robertson was in the conspiracy to rob. Suppose he was; suppose he robbed it personally and unaided; why should the surety company respond for a loss that occurred more than five months after its liability ceased?

The plaintiff answers: Because the scheme to rob the bank was hatched while the bond was in force. But that is not the agreement. The agreement was to idemnify against losses that occur while the bond was in force, if the loss was occasioned through the dishonesty, fraud, or theft of the employee. But no loss occurred. The bond does not indemnify against dishonest ideas or plans; it indemnifies against losses. Suppose a dishonest man conceived the idea of seeking employment in a bank, in order that he might steal. He gets the employment, is bonded, and steals while the bond is in force. Could the surety company defend on the ground that the loss was actually suffered when the idea was conceived? The question answers itself; yet here the plaintiff seeks to fix the liability, not as of the date when the loss occurred, but as of the date when the idea was first suggested. That is not the plaintiff's contract.

The allegations with reference to the losses suffered by plaintiff in May, 1926, I will be stricken.