Note on the Removal of Causes.

could not have acquired original jurisdiction of this action, because the assignor and the defendant both live in the same State.

I am of the opinion, therefore, that the circuit court of the United States could not take cognizance of this action if an order of removal, pursuant to the provisions of sections 2 and 3 of the act of Congress, March 3, 1875, was made, and consequently the motion to remove should be denied, with ten dollars costs, to abide event.

NOTE ON THE REMOVAL OF CAUSES.

The act of 1875 (18 Stat. at L. ch. 3, p. 471), after defining the jurisdiction of the circuit court, in a provision quoted in Leutze v. Butterfield (p. 20, above), proceeds as follows: § 2. "That any suit of a civil nature, at law or in equity, now per ding or hereafter brought in any State court where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and

[1] "Arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or [2] "In which the United States shall be plaintiff or petitioner,

or,

[3] "In which there shall be a controversy between citizens of different States, or

[4] "A controversy between citizens of the same State claiming lands under grants of different States, or

66

[5] "A controversy between citizens of a State and foreign States, citizens or subjects.

"Either party may remove said suit into the circuit court of the United States for the proper district. And

[6] When in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then, either one or more of the plaintiffs or defendants actually interested in such controversy, may remove said suit into the circuit court of the United States for the proper district.

§ 3. That whenever either party, or any one or more of the plaintiff's or defendants entitled to remove any suit mentioned in the next preceding section, shall desire to remove such suit from a State court to the circuit court of the United States, he or they may make and file a petition in such suit in such State court, before or at the term

Note on the Removal of Causes.

at which said cause could be first tried and before the trial thereof for the removal of such suit into the circuit court to be held in the district where such suit is pending, and shall make and file therewith a boud, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had been originally commenced in the said circuit court." [Then follows a clause regulating somewhat differently, removal in case of State land grant controversies. Also one as to trial by jury.]

Nature of the cause.--All criminal cases are excluded from the operation of this act; and in civil cases some difference of opinion exists as to whether special proceedings are within it. Under the judiciary act, which gave the right of removal only to a defendant who had not submitted himself to the jurisdiction,-it was well held that a plaintiff against whom an answer demanding equitable relief had been interposed, was not within the act. West v. Aurora City, 6 Wall. 139. See also Gaines v. Fuentes, below.

A proceeding which, though special and statutory, and founded on jurisdiction of the res, and ending, like a proceeding in rem, in a judgment conclusive against an absent claimant, is nevertheless removable if it be a remedy substantially consistent with the ordinary modes of procedure on the equity side of the Federal courts. Thus a special proceeding, in substance a bill of peace, but citing by publication all persons who can set up any right, &c., to land bought at an official sale, to show cause, &c., or be barred, is removable. Parker ". Overman, 18 How. U. S. 137, 140.

So

land

proceeding commenced without process,--as an appeal by a owner from an award of damages, made by commissioners apprais

a

ing lands taken by a business corporation,—becomes, when it is dock

eted and pending, as

Patterson

an action at law would be, removable.

v. Boom Co., 3 Dill. 465. Amount in controversy.—All cases are excluded that do not consist

of a

controversy as to a subject matter of pecuniary or property value exceeding $500. See 16 Abb. Pr. N. S. 97, note; DeKrafft v. Barney, 2 Black, 704; and cases cited at 707; Pratt v. Fitzhugh, 1 Id., 271.

Note on the Removal of Causes.

But a market value is not necessary under such a restriction. Sparrow v. Strong, 3 Wall. 103. Compare 21 How. U. S. 290.

Interest, when claimed and recoverable, may be included for the purpose of determining whether the sum exceeds $500. See Sloan v. Lewis, 22 Wall. 150; Bank of U. S. v. Daniel, 12 Pet. 32; and in such cases it is enough, if with interest down to the time of application, the claim exceeds $500. McGinnity v. White, 3 Dill. 350. It is otherwise of the limit of judgments reviewable by error. Walker v. U. S., 4 Wall. 163.

The amount which is claimed, and appears to be recoverable by the plaintiff's process and pleading, is that which determines the question. If the allegations of the pleading show a claim not exceeding $500— an empty demand for a judgment exceeding $500, is not available. Lee v. Watson, 1 Wall. 337. But on the other hand, when either the process or the pleading fails to fix the sum, the other may be referred to to ascertain it; and if neither disclose it, as sometimes in case of an injunction suit, the court may receive other evidence. For a collection of the authorities on this point see Fisk v. Union Pacific R. R. Co., 10 Abb. Pr. N. S. 483, note, and McGinnity v. White, 3 Dillon 350; Hulsecamp v. Teel, 2 Dall. 358; Gordon v. Longest, 16 Pet. 97.

It seems, that where the main controversy is between citizens of different states, the whole cause may be removed, although questions between citizens of the same State are incidentally involved. Osgood v. Chicago, &c., R. R. Co., 2 Cent. L. J. 275, 283; Lockhart v. Horn, 1 Wood, 628. Compare First Nat. B'k v. King, &c. Co., 2 Cent. L. J. 505. The petition is treated by some of the authorities as a merely formal act, accompanying the bond; and the filing of both a step which ipso facto terminates the jurisdiction of the State court, if the statutory facts exist, and without any act on the part of the State court. Osgood v. Chicago, &c. Rw. Co., 2 Cent. Law J. 275, 505, 616; and according to this view the petition need not be verified.

Opposed to this is the view that the presenting of the petition and bond to the State court imports its scrutiny of the security, and its hearing and granting, or refusing the petition. This is the rule followed in the cases reported in the text; and is understood to be agreeable to the practice in several other State courts. See also Railway Co. v. Ramsey, 22 Wall. 328.

According to this view, the petition should be verified, unless the facts all appear on the record. See Anon. 1 Hopk. 115. It was held in Jones v. Amazon Ins. Co. (5 Insurance Law J. 878), that the removal is not effected until the præcipe directing the clerk to certify the record has been filed with him.

After a proper application has been denied by the State court the

Note on the Removal of Causes.

applicant does not, by proceeding to trial there, waive the objection to jurisdiction (Kanouse v. Martin, 15 How. U. S. 198; Stanley v. Chicago, &c. R. R. Co., 62 Mo. 511; Ins. Co. v. Dunn, 19 Wall. 214; Gordon . Longest, 16 Pet. 97; Herryford v. Ins. Co., 42 Mo. 148). Other cases on this act.

In GAINES v. FUENTES (U. S. Supreme Court, October, 1875,) [probably to be reported in 92 U. S., 2 Otto] it was held, that an act giving removal, ipso facto gave jurisdiction to the Federal Court; and it was considered also, that a proceeding for the probate of a will, being a proceeding in rem. and not necessarily involving adversary parties, or all the world being parties, is not a "case at law or in equity," within the act; but that a suit in equity to avoid a will, and in effect revoke a probate, is within the statute.

In that case, it appeared that in 1855, the appellant, Mrs. Gaines, applied to the second district court for the parish of Orleans, which by the law of Louisiana has probate jurisdiction, for probate of the will of Daniel Clark, which was decreed, ex parte, with leave to any persons to contest the will in a direct action, or by way of defense. Mrs. Gaines then brought suits in the United States circuit court, to against the Fuentes, and others who were in possession of property to which Mrs. Gaines claimed title under the will.

recover

Fuentes and others, the present defendants in error, then brought this present suit in the same district court of Louisiana, to revoke the will and recall the probate, on the ground of alleged falsity and insufficiency of the evidence on which it was granted, and the incapacity of the appellant to inherit or take as devisee from the deceased. Thereupon, the appellant petitioned the State court, under the judiciary act, for a removal to the circuit court of the United States, on the ground that she was a citizen of New York, and the petitioners for revocation of probate were citizens of Louisiana. The court denied this on the ground that by propounding the will in the State court, she had submitted to the jurisdiction, and could not remove consequent action to revoke probate.

the

of

She then applied for removal under the act of 1867, on the ground prejudice and local influence. This application was denied on the ground that the subject matter of the case was one of which the United States circuit court would have no jurisdiction. The cause in the State court then proceeded to a decree, by which the probate was revoked; and from the decree of the supreme court of the State affirming this decree, the appellant brought error to the United States

Supreme court.

The U. S. supreme court reversed the decree for error in refusing

the

removal.

Note on the Removal of Causes.

FIELD, J., in delivering the opinion, says: "The action, as already stated, is in form to annul the alleged will of Daniel Clark, of 1813, and to recall the decree by which it was probated. But as the petitioners are not heirs of Clark, nor legatees nor next of kin, and do not ask to be substituted in place of the appellant, the action cannot be treated as properly instituted for the revocation of the probate, but must be treated as brought by strangers to the estate, against the devisee, to annul the will as a muniment of title, and to restrain the enforcement of the decree by which its validity was established so far as it affects their property. It is in fact an action between parties, and the question for determination is whether federal courts can take jurisdiction of an action brought for the object mentioned between citizens of different States, upon its removal from a State court."

After discussing and affirming the constitutionality of the act of 1867, and holding that whatever cause the act makes removable, it ipso facto, gives jurisdiction to the court into which it is removed, the opinion concludes as follows:

"Nor is there anything in the decisions of this court in the case of Gaines v. New Orleans (6 Wall. 642), nor in the case of Broderick's Will (21 Id. 503), which militates against these views. In Gaines v. New Orleans, this court only held that the probate could not be collaterally attached, and that until revoked, it was conclusive of the existence of the will and its contents. There is no intimation given that a direct action to annul the will, and restrain a decree admitting it to probate, might not be maintained in a federal as well as a State court, if jurisdiction of the parties was once rightfully obtained.

In the case of Broderick's Will, the doctrine is approved, which established both in England and in this country, that by the general jurisdiction of courts of equity, independent of statutes, a bill wil not lie to set aside a will or its probate; and whatever the cause Or the establishment of this doctrine originally, there is ample reason for its maintenance in this country from the full jurisdiction over the subject of wills vested in the probate courts, and the revisory power over their adjudications in the appellate courts. But that such jurisdiction may be vested in the State courts of equity by statute, is there recognized, and that when so vested the federal courts sitting in the States where such statutes exist, will also entertain concurrent jurisdiction in a case between proper persons.

"There are, it is true, in several decisions of this court, expressions of opinion that the federal courts have no jurisdiction in matters of probate, referring particularly to the establishment of wills, and such is undoubtedly the case under the existing legislation of con