§ 108. § 108 a. § 108 b. § 108 c. § 108 d. § 108 e. § 108 f. § 109. § 109 a. § 109 b. CHAPTER X. EFFECT OF REMOVAL OR REMAND. Duty of the State court on filing petition and bond. Proceedings in State court. Order of removal. Jurisdiction, when attaches in circuit court. Trial of issues on petition for removal. Effect of filing copy of record-Removal perfected. Legal and equitable causes to be kept distinct. § 109 c. § 109 d. § 109 e. § 109 f. Practice and procedure. § 111 e. Either party may file record and move to remand cause. § 111 k. § 111 1. No appeal from order of circuit court remanding cause. § 108. Duty of the State court on filing petition and bond. It shall then be the duty of the State court to accept said petition and bond, and proceed no farther in such suit. (Clause 3 of sec. 3 of the Act of March 3, 1875, as amended by Act of March 3, 1887; 24 U. S. Stats. 552; as corrected August 13, 1888; 25 U. S. Stats. 435.) § 108 a. Effect of proceedings for removal-Presenting a petition initiates the removal, and leaves the State court no jurisdiction to take any proceedings other than to perfect the removal;1 and the State court has no jurisdiction to deny the application; the statute requiring it to accept the petition and bond, and proceed no farther in the cause. Where a removal is authorized by the facts of the case jurisdiction ceases and attaches in the circuit court, and all further proceedings in the State court are coram non judice. The jurisdiction of the State court is ousted when the proceedings are regular;5 and if the petition contains proper averments, and the petitioner complies with the requirements of the law, the removal is a matter of right; and the removal is imperative both on the State and the Federal court." The jurisdiction is not ipso facto suspended by the filing of the petition and bond; as the mere filing of the petition and bond, unverified and unaccompanied by any proofs of the facts of citizenship relied on, does not oust the State court of its jurisdiction. After the petition is filed, complying with the requisites of the law, plaintiff cannot amend his declaration, nor dismiss the suit.11 Where a sufficient cause is made, the jurisdiction in the State court is at an end, and the jurisdiction of the Federal court attaches; and the fact that only a part of the record is filed will not oust it. 12 The mere filing of a petition and bond for the 10 removal of a cause from a State court to the Federal court, does not divest the State court of its jurisdiction. 13 Where, at the time of the removal of a cause from a State to a Federal court, an examination of the defendant before trial is pending, the right to continue the examination is preserved under the United States Removal Act of 1875.14 Where the party removing a cause fails for a year to file the transcript, and then redockets the cause in the State court, and recognizes its jurisdiction, he cannot again remove it on another ground not shown not to have existed at first, his delay not being excused. 15 1 Fisk v. Union Pac. R. Co., 8 Blatchf. 248. 2 Hatch v. Chicago, R. I. & P. R. Co., 6 Blatch. 105; Gordon v. Longest, 16 Peters, 97; Livermore v. Jenks, 11 How. Pr. 479; James v. Thurston, 6 R. I. 428; Ficklin v. Tarver, 59 Ga. 263; Akerly v. Vilas, 2 Biss. 110. 3 Manville v. W. U. Tel. Co., 2 Cent. L. J. 616. 4 New York Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204. 5 Shaft v. Phoenix Mut. L. Ins. Co., 67 N. Y. 514. 6 Gordon v. Longest, 16 Peters, 97; Fisk v. Union Pac. R. Co., 6 Blatchf. 352; Matthews v. Lyall, 6 McLean, 13; Edwards v. Ward, 3 Bush, 696; Brown v. Crippen, 4 Hen. & M. 173; Butterfield v. Home Ins. Co., 14 Minn. 410; Kennedy v. Woolfolk, 1 Tenn. 453. 7 Dennistoun v. Draper, 5 Blatchf. 336. 8 Nat. Union Bk. v. Dodge, 11 The Reporter, 641. Contra: In re Iowa & Minn. Min. Co., 10 Fed. Rep. 401. 9 Delaware etc. Co. v. Davenport etc. Co., 46 Iowa, 406; Removal Cases, 100 U. S. 457. See Railway Co. v. Ramsey, 22 Wall. 328. 10 Livermore v. Jenks, 11 How. Pr. 479. 11 Beery v. Chicago, R. I. & P. R. Co., 64 Mo. 533. Contra: Matthews v. Lyell, 6 McLean, 13. 12 Clark v. Chicago, M. & St. P. R. Co., 11 Fed. Rep. 355; Sweet v. Same, 11 Fed. Rep. 355; Railroad Co. v. Mississippi, 105 U. S. 141. 13 Southern Pacific R. Co. v. Los Angeles County Superior Court, 63 Cal. 607. 14 Fogg v. Fisk, 19 Fed Rep. 225; S. C. 66 How. (N. Y.) Pr. 343. 15 Pope v. Cheney, 22 Fed. Rep. 177; Phoenix Life Ins. Co. v. Walrath, 117 U. S. 365. § 108 b. Proceedings in State court.—When the petition is filed, no steps should be taken on the cause until it is acted on. 1 State courts have the right to judicially pass, for some purposes at least, upon the sufficiency of an application for removal, and of the accompanying bond. 2 The acceptance or rejection of the petition involves a decision upon its sufficiency; and the State court must inspect the documents, and determine whether 6 8 the conditions apply or not. An averment that there is a controversy that can be fully determined is not conclusive, but may be investigated; 5 so the court may inquire into the truth of the facts alleged. The adverse party may deny the facts set forth in the petition by answer or affidavit, and produce evidence in support of his denial;" matters controverted are the only matters in dispute. The court must be satisfied that the application is founded on facts which entitle the applicant to the order; and also that the amount in dispute is sufficient. 10 The petitioner should adduce satisfactory evidence at the hearing of the petition;" and if no satisfactory evidence is adduced of the truth of the facts necessary to give the right to a removal, the prayer of the petitioner must be denied. 12 The State court cannot consider any matter which does not appear on the record, except such as it may judicially take cognizance of. 13 Where the petition fails to show that the cause is removable, the court should deny the application. 14 Its jurisdiction is not thereby ousted, nor its subsequent proceedings made erroneous or void. 15 It cannot dismiss the proceedings for non payment of a tax imposed by State law; 16 nor stay proceedings in the Federal court until costs of removal are paid; nor can it issue execution for the costs. 17 The State court may order a new bond to be filed as a substitute for a bond given to release property attached on mesne process. A State court is not bound to surrender jurisdiction until a case has been made, which on its face shows a right of removal, 19 If it decides against the removal, the decision is reviewable in the Supreme Court of the United States. If, notwithstanding the attempted removal, jurisdiction of the Federal courts never attached, proceedings of State courts are valid as though the removal had not been attempted. 20 1 People v. Superior Court, 34 Ill. 356. 18 2 McWhinney v. Brinker, 64 Ind. 363; Blair v. West Point etc. Co., 7 Neb. 146. 3 Carswell v. Schley, 59 Ga. 17; Lalor v. Dunning, 56 How. Pr. 209; Taylor v. Rockefeller, 35 Leg. Int. 284; Mayo v. Taylor, 8 Ch L. N. 10. Contra: Jones v. Amazon Ins. Co., 9 Ch. L. N. 68; Dunham v. Baird, 2 Week. Notes, 52; Connor v. Scott, 4 Dill. 242. 4 Carswell v. Schley, 59 Ga. 19; Mayer v. Delaware R. Constr. Co., 100 U. S. 457. 5 Clarke v. Opdyke, 17 N. Y. Supr. 383. 6 Blair v. West Point Manuf Co.. 7 Neb. 146: Burch v. Davenport & St. P. R. Co., 46 lowa, 449; Delaware R. Constr. Co. v. D. & St. P. R. Co., 46 Iowa, 406. 7 Orosco v. Gagliardo, 22 Cal. 83; Disbrow v. Driggs, 8 Abb. Pr. 305, note; Tunstall v. Madison, 30 La. An. 471. 8 Tunstall v. Madison, 30 La. An. 471; Disbrow v. Driggs, 8 Abb. Pr. 305; De Camp v. N. J. M. L. Ins. Co., 2 Sweeny, 481. 9 Orosco v. Gagliardo, 23 Cal. 83; People v. Superior Court, 34 Ill. 236; Cooley v. Lawrence, 12 How. Pr. 176; S. C., 5 Duer, 605; New York Piano Co. v New Haven Steamboat Co., 2 Abb. Pr. N. S. 357; Tunstall v, Madison, 39 La. An. 471. Contra: Oakey v. Bank, 14 La. 415; Stoker v. Leavenworth, 7 La. 330. 10 Abranches v. Schell, 4 Blatchf. 256; Turton v. Union Pac. R. Co., 3 Dill. 366. 11 Disbrow v. Driggs, 8 Abb. Pr. 305, note; People v. Superior Court, 31 Ill. 356; Louisiana State Bank v. Morgan, 4 Martin N. S. 344. 12 People v. Superior Court, 31 Ill. 356. 13 Savings Bank v. Benton, 2 Met. (Ky.) 240. 14 Weed Sew. Mach. Co. v. Smith, 71 Ill. 204; U. S. Savings Inst. v. Brockschmidt, 73 Ill. 370; McWhinney v. Brinker, 4 Ind. 360; New Orleans etc. Co. v. Recorder, 37 La. An. 291; Liverpool Ins. Co. v. McGuire, 52 Miss. 227; Hartford F. Ins. Co. v. Green, 52 Miss. 332; Blair v. West Point etc. Co.. Neb. 146. 15 Gordon v. Longest, 16 Peters, 97; Ins. Co. v. Dunn, 19 Wall. 214; Kanouse v, Martin, 14 How. 13; 15 How. 19; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Holden v. Putnam Fire Ins. Co., 46 N. Y. 1; Savings Bank v. Benton, 2 Met. (Ky.) 240; Blair v. West Point etc. Co., 7 Neb. 146. 16 Bragg v. Tibbs, 44 Ga. 294. 17 Mayor of New York v. Cooper, 6 Wall. 250; Penrose v. Penrose, 1 Fed. Rep. 479. 18 Ramsey v. Coolbaugh, 13 Iowa, 161. 19 Stone v. South Carolina, 117 U. S. 430. 20 Hunter v. Colquit, 73 Ga. 44. 3 § 108 c. Order of removal.-No formal order for the removal of the cause is necessary,1 though the better practice is to make an order; yet it is removed though an order is not passed. So no order accepting petition and bond is necessary. If the statute has been complied with, the filing of the transcript vests jurisdiction in the Federal court.4 Neither an order refusing nor an order granting a removal can affect the jurisdiction of the circuit court. When the proper steps are taken and the evidence is presented, the right is perfected, and no action of the State court can confer the right or take it away." The State court may insert in the order a provision that it shall not operate, of itself, to dismiss an injunction previously issued. If an order for removal is erroneously entered, the State court may strike it out; but it cannot |