right. There must be a clear, unequivocal and decisive act showing such a purpose or acts amounting to an estoppel. We find none. Whiteley Malleable Castings Co. v. Sterlingworth Railway Supply Co., C.C.Ind., 83 F. 853, at page 855, and see McMillen v. Indemnity Ins. Co. of North America, D.C.Mo., 8 F.2d 881, at page 883; Town of Edenton v. Hervey Foundation, Inc., D.C.N.C., 71 F.Supp. 998, at pages 999, 1000. This statutory right should not be denied because of some fortuitous act which defendant did not intend to have such an effect. The action relied upon must be inconsistent with a purpose to pursue the right to remove and clearly indicate an intention to submit to the jurisdiction of the state court. State, on inf. of McKittrick ex rel. City of Trenton, Mo. v. Missouri Public Service Corp., D.C.Mo., 25 F.Supp. 690, at page 691; Davila v. Hilton Hotels International, D.C.Puerto Rico, 97 F.Supp. 32, at page 34.
When the state court lacks jurisdiction of the person of the defendant, the federal court acquires none on removal. Freeman v. Bee Machinery Co., 1943, 319 U.S. 448, at page 449, 63 S. Ct. 1146, 1147, 87 L. Ed. 1509, and cases cited. Although a statement is there made, 'That is true even where the federal court would have jurisdiction if the suit were brought there', such statement must be considered in the light of the provisions of 28 U.S.C.A. § 1447(a), 'In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise'; and § 1448, 'In all cases removed from any State court to any district court of the United States in which any one or more of the defendants has not been served with process or in which the service has not been perfected prior to removal, or in which process served proves to be defective, such process or service may be completed or new process issued in the same manner as in cases originally filed in such district court. * * *' See United States Fidelity & Guaranty Co. v. Board of Commissioners, 8 Cir., 1906, 145 F. 144, at page 146; Maichok v. Bertha-Consumers Co., 6 Cir., 1928, 25 F.2d 257, at page 258; Phillips v. Manufacturers Trust Co., 9 Cir., 1939, 101 F.2d 723, at page 727; Gresham v. Swift & Co., D.C.W.D.La., 29 F.Supp. 824, at page 825; Hisel v. Chrysler Corp., D.C.W.D.Mo., 90 F.Supp. 655, at page 659; German v. Universal Oil Products Co., D.C.W.D.Mo., 6 F.Supp. 53, at page 58; Murphy v. Campbell Soup Co., D.C.Mass., 40 F.2d 671, at page 673; Samson v. General Casualty & Insurance Co. of America, D.C.N.D.Iowa, 104 F.Supp. 751, at page 752; cf. Wilson v. Kansas City Southern Ry. Co., D.C.W.D.Mo., 101 F.Supp. 56, at pages 59, 60, and see generally 2 Cyclopedia of Federal Procedure, 3d Ed., §§ 3.131, 3.140; Moore's Commentary on the United States Judicial Code, § 0.03(42), p. 278.
Although upon removal the validity of prior process is first considered in comparison with State standards, thereafter the Federal Rules of Civil Procedure, including 4(d)(3), as to service upon corporations are applicable. See Freeman v. Bee Machinery Co., supra, 319 U.S. at page 454, 63 S. Ct. 1146, and Rule 81(c).
In view of the foregoing, we waited some time to see if plaintiff's counsel would take any steps to attempt to perfect service of process. They may have good reason, unknown to the court, for not doing so, e.g., a question as to which statute of limitations is applicable; upon which we at this time express no opinion.
Under the circumstances, we have no alternative but to dismiss plaintiff's action without prejudice.
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