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thereto, plaintiff, on the day of , 19 , entered judgment against this deponent for dollars, and that the judgment roll in this action was filed on the day of 1985
III. That deponent desires to be allowed to defend the action, and for that purpose to serve the proposed answer which is hereto annexed, upon the plaintiff, (and upon the defendant W. X.; - if the answer is not verified according to N. Y. Code Civ. Pro., $ 524, add] and all the allegations of said answer are true to the knowledge of deponent.
IV. [If final judgment has been entered more than one year previous to the application, add] That no personal service has ever been made on deponent of written notice of the entry of final judgment in this action Centered the day of last87]. [Jurat.]
(2) after final judgment and within one year after personal service of written notice thereof, or (3) if such notice has not been served, within seven years after filing of the judg. ment-rolls. Code Civ. Pro., § 445; Marvin v. Brandy, supra.
85 See N. Y. Code Civ. Pro., $ 1290. 86 If a meritorious defense is dis.
closed by the answer and the affidavits, the court must grant the application upon terms. The existence of a defense upon the merits is “ sufficient cause shown” within § 445 of the Code. Marvin e. Brandy, 56 Hun, 242, 9 N. Y. Supp. 593, 18 Civ. Pro. 343.
87 Id., $ 445; Guy v. Ide, 6 Cal. 99.
REMOVAL FROM A STATE COURT TO THE CIRCUIT COURT OF THE
[The course most convenient to the practitioner will be to notice first those general principles which apply to two or more of the several classes of cases in which there is a right of removal, and in connection therewith the changes introduced by the Act of 1887-1888; then, in the light of those changes to take up each class of cases with the principles which test the question whether the right exists in a given case, and the rules peculiar to their application in cases of that class; and afterward to consider certain rules of procedure common to several classes of cases.]
16. — obligors.
petition, bond, etc.
II. FOB FEDERAL QUESTION CASES,
see p. 773.
I. GENERAL PRINCIPLES; AND THE
ACT OF 1888. 1. Power of removal. 2. Tne right indefeasible. 3. Nature of the causes removable. 4. — auxiliary suits. 5. Injunction against proceedings in
State court. 6. Amount in controversy. Acts of
1875 and 1887 contrasted. 7. Person of the applicant. 8. Precluding removal by assign
ment. 9. The practice in obtaining removal. 10. The petition — facts. 11. – reference to statute. 12. — situation of the cause. 13. – signature and verification. 14. Bond — form. 15. — amount.
1. Power of removal.] — The power to remove a cause from a State court to the United States Court is purely statutory.
In respect to the effect of a deviation from the statute an important distinction is to be noticed. The terms of the statute defining the jurisdiction of the United States court and the right of removal are inexorable. No consent or waiver can give the United States courts jurisdiction in a case in which the statute does not give them jurisdiction.88
88 Empire Coal, etc., Co. 1. Empire Coal, etc., Co., 150 U. S. 159, 163. See also Continental Ins. Co. v. Rhoads, 119 U. S. 237; Amory v. Amory, 95 U. S. 186 (holding personal citizenship essential) ; Martin v. Baltimore, etc., R. Co., 151 U. S. 673, 690; Ayers v. Watson, 113 id. 594 (an objection as to time within which application for removal was made may be waived).
Consent to removal will neither give jurisdiction of the subjectmatter, nor of parties who could not invoke or be subjected to the jurisdiction. But if the cause be such that the court might have acquired jurisdiction of the parties by service of process, consent to removal waives any objection to the process or its service. Ile who desires to contest the validity of service of process should appear specially.
As will be seen hereafter, in the principal classes of cases, no act — neither the refusal of the State court or of the United States court to act, nor any order made by either— except it may be a finding that the surety offered is insufficient, can prevent the removal in a case within the statute, if the applicant seasonably files the requisite papers.
It is not settled whether if a person not a party is entitled to be made a party in the State court in a case in which, on becoming a party, he would have a right of removal, the refusal of the State court to act on his application to be made a party will be allowed by the United States court to prejudice him, or whether he may have a removal and be allowed to proceed by order of the United States Circuit Court.90 But intervenors, by voluntarily connecting themselves with an action, which at the time of their intervention is not removable, subject themselves to the disabilities of the original defendants. 91
2. The right indefeasible.] — On grounds of public policy, the right of a party to remove a cause in a case provided for by the statute, is not barred by a stipulation made before suit not to exercise the right.92 Even procuring removal in a case where there was no right to it does not estop the removing party from objecting that the United States court acquired no jurisdiction.
Only those cases are removable under section 2 of the Removal Act in respect to which original jurisdiction is given to the circuit courts by section 1. Arkansas r. Kansas & Tex. Coal Co., 183 U. S. 185.
89 Byers v. McAuley, 149 U. S. 608. But where an action commenced in a State court involved the same claims as were involved in an action already commenced in the Circuit Court, which had jurisdiction, Held, that a removal by consent to the Circuit ('ourt could be sustained, as it simply effected what the parties could have been compelled to do by injunction. People's Bank t. Calhoun, 102 U. S. 256; approved in Hitz 11. Jenks, 185 id. 169.
90 Compare Kidder r. Northw. Life Ins. Co., 117 Fed. Rep. 997, and Hack o. Chicago & G. S. Ry. Co., 23 Fed. Rep. 356.
91 Cable r. Ellis, 110 U. S. 389. See, also, cases under preceding note.
02 Doyle r. Continental Ins. Co.. 94 U, S. 537; Ins. Co. 6. Morse, 20 Wall. 445; Cable v. U. S. Life Ins. Co., 191 U. S. 288, 306.
Nor is it any objection to the claim to remove a cause that the State statute under which the cause is pending in the State court declares that the State court shall have exclusive jurisdiction.93
3. Nature of the causes removable.] — The statute applicable to the most common classes of cases — namely, Federal question cases, citizenship cases, and prejudice or local influence cases under the Act of 1888, and State land grant cases, - provides only for the removal of “ any suit of a civil nature at law or in equity;" this excludes criminal cases.94
The question whether a defendant's counterclaim 95 is removable, and what special statutory proceedings are removable, *will require careful attention from the practitioner engaged in such a case.
83 Clark v. Bever, 139 U. S. 96; Hess v. Reynolds, 113 U, S. 73 (holding, in a local prejudice case, that a proceeding against an administrator to obtain payment of a debt due by the decedent in his lifetime, is removable into a court of the United States when the creditor and the administrator are citi. zens of different States, notwithstanding that the State statute may enact that such claims can only be established in a probate court of that State, or by appeal from that court to some other State court).
94 State 1. Grand Trunk R. R. Co., 3 Fed. Rep. 887; Ferguson v. Ross, 38 id. 161.
05 The right of removal is not given to a plaintiff in a State court, who, by resorting to that jurisdiction, has become liable under the State laws to a crossaction. See West v, Aurora City, 6 Wall. 139; Waco Hardware Co. v. Mich. Stove Co., 91 Fed. Rep. 289; McKown v. Kans. & T. Coal Co., 105 id. 657; Indian, etc., Coal Co. v. Asheville, etc., Coal Co., 135 Fed. Rep. 837. Contra, Walcott u. Watson, 46 Fed. Rep. 529; Price v. Ellis, 129 id. 483.
As to right of third person to remove, who is made a party by a proceeding equivalent to the filing of a supplemental bill, see Ward v. Congress Const. Co., 99 Fed. Rep. 598.
Whether the amount of a counter-claim, set up by the removing defendant, may be added to the plaintiff's claim to give the Federal Court jurisdiction and thus permit removal, is not settled. That it may was held in Montague r. Lumber Co., 44 Fed. Rep. 645; Crane Co. v. Guanica Centrale, 132 id. 713, Falls Wire Mfg. Co. v. Broderick, 12 Centr. L. J. 372. Contra, Clarkson r. Manson, 18 Blatchf. 443, 60 How. Pr. 45, 12 Centr. L. J. 439; Lumber Co. t. Holtzclaw, 39 Fed. Rep. 578.
96 A proceeding which, though special and statutory, and founded or juris. diction of the res, and ending, like a proceeding in rem, in a judgment cor clusive 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, ir substance a bill of peace, but citing by publication all persons who can set up any right, etc., to land bought at an official sale, to show cause, etc., or be barred, is removable. Parker 1. Overman, 18 How. U. S. 137, 140. For an exhaustive discussion and reviews of cases turning on the removal of a probate proceeding, see Farrell v. O'Brien, 199 U. S. 89.
Du Vivier v. Hopkins, 116 Mass. 125 (proceeding to establish claim against estate of deceased, held not removable).
4. — auxiliary suits.] —A suit which would be within the original jurisdiction of the Circuit Court of the United States merely because auxiliary or incidental to a judgment or decree already recovered in the United States court, is not removable from a State court solely on that account.
Whether the fact that a suit is auxiliary and incidental to a judgment or decree already recovered in a State court, prevents its removal, depends upon its being in substance merely a branch of the original proceeding intended to invoke only the exclusive control of the court over its own process and record — such, for instance, as a statutory proceeding to try summarily the title to chattels levied on,7 or an action to annul a judgment merely on grounds involving the form and not the merits of the judgment. 98
If it is a suit in law or equity founded upon the substantial legal or equitable right of the party, the fact that it grows out of or seeks to control a suit in the State court which could not be removed, does not prevent its removal.99
Gaines v. Fuentes, 92 U. S. 10, 1 Abb. N. C. 25, n. (bill in equity to avoid a will and in effect revoke its probate, held removable).
Madison Traction Co. 1. St. Bernard Mining Co., 196 U. S. 239; Boom Company v. Patterson, 98 U. S. 403, 3 Dill. 465 (holding, in a citizenship case, that a controversy between the owner of lands and a corporation seeking to condemn and appropriate them, is, if carried under a State law from the commissioners of appraisement to the State court, taking there the form of a suit at law, subject to removal).
Kurtz v. Moffitt, 115 U. S. 487; Campbell v. Wait, 180 id. 635; Hoadley o. Chase, 126 Fed. Rep. 818 (habeas corpus is not removable).
State v. Johnson, 29 La. Ann. 399 (mandamus); State , Bowen, 8 S. C. (Rich.) 382 (quo warranto).
Keith r. Levi, 2 Fed. Rep. 743 (actions begun by attachment are remov
Where there is no controversy the suit cannot be removed; a mere proceeding cannot be removed. Fashnacht v. Frank, 23 Wall. 416.
So, where a default has been taken. Berrian v. Chetwood, 9 Fed. Rep. 678; also, Pettus v. Georgia R. R. Co., 3 Woods, 620.
In an action of interpleader, the main question being whether the action is rightly brought, and the primary issue being between the plaintiff and the defendants, and not between the co-defendants, the action can only be renoved to the United States court on the ground of citizenship when the defondants are all citizens of different States from the plaintiff; it is not enough Hat the defendants making the conflicting claims are not citizens of the same State. Republic Fire Ins. Co. r. Keogh, 23 Hun, 644; but query!
97 Bank 2. Turnbull, 16 Wall. 190; Coeur D'Alene Ry. Co. v. Spalding, 93 Fed. Rep. 280.
98 Barrow v. Hunton, 99 ('. S. 80; Marshall r. Holmes, 141 id. 589; Nat. Surety Co, 1. State Bank of Humboldt, 120 Fed, 593.
91 A suit to restrain a judgment-creditor from levying on land whereof the complainant was the owner and actual possessor by a good and valid title from the judgment-debtor, Ħeld, not to be so auxiliary and incidental to the