pleadings when the petition therefor is filed.'
In Lee v. Lehigh Valley Coal Co., 1925, 267 U.S. 542, 543, 45 S. Ct. 385, 386, 69 L. Ed. 782, the Supreme Court said:
'When a defendant seeks to remove a suit from a State Court to the District Court, of course he is entitled to contend that a party joined by the plaintiff is not a necessary party and therefore does not make the removal impossible by defeating the jurisdiction.'
The former trustees and the beneficiaries having not been necessary parties, the case can be removed to this court even though they were named as parties.
The depositions, moreover, do not support the City's contention that the transfer of title to the new trustee was illusory, and they do not support the contention that the appointment of the successor trustee or the conveyance to him were improper.
The City contends that the removal petition was and is premature on the ground that the case (it contends) cannot be removed to the federal court until the viewers in Northampton County have made an award and there is an appeal to the state court from that award to make possible a jury trial. As authority for this proposition the City cites Chicago, R.I. & P.R. Co. v. Stude, 1954, 346 U.S. 574, 74 S. Ct. 290, 98 L. Ed. 317. In the Stude case the railroad which appropriated the land requested an Iowa court to appoint a commission. After the commissioners made an award determining the amount of and assessing the damages, the railroad removed the case to a federal court. The landowner petitioned for remand to the state court and the Supreme Court affirmed an order remanding the case, because under the removal statute, 28 U.S.C.A. § 1441, only defendants are entitled to remove cases from state to federal courts, and the railroad could not bring itself within the statute because it was plaintiff and not a defendant. The Stude case does not decide, as the City contends, that a defendant in a state court proceeding cannot remove an eminent domain case to a federal court until the case has arrived at the jury stage in the state court. The Supreme Court recognized this in Allegheny County v. Frank Mashuda Co., 1959, 360 U.S. 185, 79 S. Ct. 1060, 3 L. Ed. 2d 1163, by commenting on the Stude case, 360 U.S. at page 195, 79 S. Ct. at page 1067, as follows:
'Although holding that the respondent could not remove a state condemnation case to the Federal District Court on diversity grounds because he was the plaintiff in the state proceeding, the Court clearly recognized that the defendant in such a proceeding could * * * obtain a federal adjudication of the issues involved.'
As has been pointed out in the opinion in Civil Action No. 25670, the present eminent domain case can properly be litigated in this court and so can be removed here.
The motion of the City of Bethlehem to remand will be denied.