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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 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 bond, with good and sufficient surety, for his or their entering in such cir. cuit court, on the first day on 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 there appearing and entering special bail in such suit, if special bail was originally requiste 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 orig: inally taken shall be discharged; and the said copy being entered as afore said 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; and if in any ac. tion commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit, if the court require it, that he or they claim or shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform we court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and
the last clause of said section, may desire to remove such suit from a State court to the circuit court of thel nited States, he may make and file a peti. tion in such suit in such State court at the time, or any time before the defendant is required by the laics of the State or the rule of the State court an which such suit is brought to ansicer or plead to the declaration or complaint of the plaintiff, 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 bond, with good and suthcient 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 shail 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 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; and if in any ae. tion commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or talue being made to appear, one or more of the plaintiffs or de fendants, before the trial, may state to the court, and make affidavit if the court require it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the ad. verse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or other wise not be allowed to plead such grant or give it in evidence upon the
if he or they inform that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim, and the trial of issues of fact in the circuit courts shall, in all suits except those of equity and of admiralty and maritime jurisdiction, be by jury.
trial; and if he or they inform that he or they do claim under such grant, any one or more of the party nioving for such information may then, on petition and bond, as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district; and any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim.
$ 2. [Directs receivers and managers to act according to the requirements of State law.)
§ 3. (Allows receivers or managers appointed by U. 8. courts to be sued without leave. Such suits to be subject to the equity jurisdiction of the court making the appointment as far as necessary for justice.]
[Citizenship of national banks.10] Sec. 4. That all national banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal, or mixed, and all suits in equity be deemed citizens of the States in which they are respectively located; and in such cases the circuit and district court shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State.
The provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.
§ 5. That nothing in this act shall be held, deemed, or construed to repeal or affect any jurisdiction or right mentioned either in sections six hundred and forty-one, or in six hundred and forty-two,11 or in six hundred and forty-three, or in seven hundred and twenty-two,12 or in title twentyfour 13 of the Revised Statutes of the United States, or mentioned in section eight of the Act of Congress, of which this act is an amendment, or in the
(11 U. S. R. S.,$$ 611, 612, here refer. red to, relate to removal in civil rights cases; Š 613 to revenue officers and reg. istration law cases; 644, which is not expressly sared, provides for the removal of a personal action by an alien against any citizen of a State who is, or at the time the action accrued was, a civil officer of the United States, and a non-resident of the State where the jurisdiction was obtained by personal service of State process.)
(1?$ 722 provides for the exercise of the jurisdiction of United States courts in reference to civil rights and crimes.)
[11 Title XXIV is that title of the Revised Statutes which treats of the subject of civil rights, and gives an action for conspiracy and for neglect to prevent conspiracy against such rights.]
(1 $ 8 of the act of 1875 provided for Act of Congress approved March first, bringing in absent defendants in suits
eighteen hundred and seventy-five, 14
i to enforce or remove liens on property.] ("s" The last paragraph "here re
entitled "An act to protect all citizens ferred to undoubtedly means the last in their civil or legal rights." clause, thougli not a separate paragraph, $ 3, consisting only of one paragraph, which allowed remand to be reviewed $ 6. That the last paragraph 15 of by the U. S. Supreme Court, & clause section five of the Act of Congress, impliedly repealed also by the last clause of $ 1 of the act of 1887.)
approved March third, eighteen hun. [1 640, here referred to, provided for dred and seventy-five, entitled "An act removal of suits against corporations to determine the jurisdiction of cir. other than banking corporations organ:
cuit courts of the United States, and ized under the lawg of the United States, or against any member of such to regulate the removal of causes ironi for any alleged liability of the corpora State courts, and for other purposes, tion, or of a member of such.) (17 The general repeal of all laws and
and section six hundred and forty 16 parts of laws in contlict repeals a clause of the Revised Statutes, and all laws of $ 739. unless saved by $5 (opposite) and parts of laws in conflict with the as a jurisdiction" mentioned " in U. S. R. S., 722; and perhaps modifies
provisions of this act,17 be, and the $$ 739, 740, 141, 742, and numerous local same are hereby repealed: Provided, statutes affecting Georgia, Michigan,
That this act shall not affect the jurisMissouri. Mississippi, Ohio, and Tenne
diction over or disposition of any suit see.
removed from the court of any State, or suit commenced in any court of the United States, before the passage hereof, except as otherwise expressly provided in this act.
18 7. Persons within the degree of first cousin, by affinity or consanguinity to the judge, not to be appointed or employed in any office or duty in
the court.) Some general questions of construction deserve attention before considering the several classes of cases in which removal is now allowable.
The pecuniary limit.] The first question which arises in proceeding to test the removability of a cause is whether the pecuniary limit in section 1 attaches to all classes of cases, or only to those classes in immediate connection with which it is mentioned, namely, Federal questions; and controversies between citizens of different States, or citizens of a State and foreign States, citizens or subjects. If the latter, then controversies in which the United States are plaintiffs or petitioners can be removed irrespective of pecuniary limit. This is a reasonable construction, and almost a necessary conclusion; otherwise the United States might be obliged to litigate in the State courts. It is also sustained by the authorities. See United States v. Sayward, 160 U. S. 493; Fishback v. W. l'. Tel. Co., 161 id. 96; Holt r. Ind. Mig. Co., 176 id. 68. For a general discussion of the matter, see Follett v. Tillinghast, 82 Fed. Rep. 241.
By a rather free construction of the statute, it is held that in order to authorize the removal of a local prejudice case the pecuniary limit of $2,000 must be reached. Re Penn. Co., 137 U. S. 45.
A State land-grant question is cognizable irrespective of the amount involved. See United States t'. Sayward, 160 U. S. 493, dictum. But there is a special provision in a later section (3) for challenging either party to a land-title case as to his intent to give a State land-grant in question, and that provision is expressly subject to the pecuniary limit.
Limit as to locality. The next question to bear in mind in proceeding to the tests of removability is whether the clauses of the last half of the section are limitations on the jurisdiction of the Circuit Courts in the sense intended in section 2. The last clause, which excludes actions by assignees when the assignor could not sue, is such a limitation; and one object of the new ait appears to be to prevent removals, on the ground of citizenship, in some cases.
See Mex. Nat. Ry. Co. v. Davidson, 157 U. S. 201, 208. But there are some difficulties in construing the clause immediately preceding the last, as having a similar function and object. If a suit cannot be removed unless the Circ cuit Court would have had original jurisdiction of the person by the like service or residence, then the right of removal, which, by the next section, 15 given in citizenship cases only to a defendant, being a non-resident of the State where he is sued, will be further confined by this section to those cases where the plaintiff is a resident of the district in which his cause in the State court is pending Section 3. I understand the clause to relate to suits originally commenced in the United States court. But the weight of authority is that the restriction upon the district in which the action may be brought is not a jurisdictional limitation, but a privilege personal to the defendant and capable of being waived by him. See St. Louis, etc., Ry, Co. 0, McBride, 141 U. S. 127; Memphis Sav. Bank v. Houcheus, 115 Fed. Rep. 96; Foulk v. Gray, 120 id. 156; Roman Pet., etc., Co. v. Hughes, etc., Drilling Co., 130 id, 585; Roberts v. Pineland Club, 139 id. 1001; Burch r. Southern Pac, Co., 139 id. 350. Compare Cochran v. Montgomery Co., 199 U, S. 260, 273.
7. Person of the applicant.] — One who is brought in as a party by virtue of an interest acquired pending the action takes subject to the removable character of the cause, irrespective of his own citizenship.18
So one intervening in a suit, after the right to a removal has been barred, is also barred from obtaining such removal if his intervention is merely incident to the original suit, eren though by such intervention he may have raised a separate controversy. 19
The appointment of a receiver for a corporation, he being of the same State, does not, before its dissolution or the termination of its powers preclude it from removing a cause.20
A receiver or official custodian of the assets of a dissolved corporation, such as the superintendent of insurance in the case of an insolvent insurance company, represents the corporation and the State in winding it up; and on becoming a party to an action in another State against such company, by citizen of such latter State, he may have it removed. The incapacity of an officer of one State to sue in another does not prevent this.21
18 Jefferson v. Driver, 117 U. S. 272 (local prejudice case ); Cable r. Ellis, 110 U. S. 389 (citizenship case).
19 Cable '. Ellis, 110 U, S. 389, applied in Houston & Texas Cent. Ry. Co. r. Shirley, 111 U. S. 358; Kidder v. Northwestern Mut. Life Ins, Co., 117 Fed. Rep. 997.
20 Second Nat. Bank 9. New York Silk Mfg. Co., 1l Fed. Rep. 532; 10 Meyer's Fed. Dec., & 1456.
21 Especially where the plaintiff is one who contracted with the corporation, and must therefore be deemed bound by the statutes providing for the mode of administering in the case of its dissolution. Relfer. Rundle, 103 U. 6. 222. This case is an exceptional one. Great Western Mining Co. v. Harris, 198 U. S. 561, 576.
The rules as to citizenship are stated in connection with citizenship cases.
8. Precluding removal by assignment.]22— A right to remove, dependent on citizenship, may be defeated by assigning or transferring the cause of action to one whose citizenship is such as to preclude removal.
If the assignment is merely colorable, and the assignor remains the real party in interest, the objection is to be raised, if at all, in the State court.23 The fact is not a ground for removal of the cause.24
9. The practice in obtaining removal.] — For the purpose of giving jurisdiction to the Circuit Court of the United States, a very concise petition is enough; and if the petitioner chooses to rest on the statute, without asking any order or approval of bond from the State court, it is enough that the record taken with the allegations of the petition allege a case which is in reality within the statute. The policy of the United States courts is to retain the cause if it be properly cognizable by them, and for this purpose even to amend formal defects in the petition.25
But it is the general practice of the State courts, although submitting to the removal whenever the United States court takes jurisdiction, not to make any order, nor themselves refuse to allow the plaintiff to proceed in the State court, unless the petition, either in itself or with the aid of the pleadings or other papers actually used in the application make a clear case under the statute.
IIence, in contested cases, there is frequently a period between the filing of the petition in the State court and the actual exercise of jurisdiction in the Circuit Court, when the cause may appear
22 See, generally, as to the construction of the provision respecting assignments, New Orleans v. Quinlan, 173 U. S. 191; Newgass v. New Orleans, 33 Fed. 196.
23 Oakley r. Goodnow, 118 U. S. 43, aff'g 25 N. W. Rep. 912, 913. 24 Provident Sav. Soc. v. Ford, 114 U. S. 635.
25 See Ayres v. Watson, 113 U. S. 594. For cases in which such amendments were allowed, see Kinney v. Col. Sav., etc., Assn., 191 U. S. 78; Powers 1. Chesapeake, etc., Ry. Co., 169 id. 72; Robertson v. Scottish Union Ins, Co., 68 Fed. Rep. 173. But of course substantial defects in the omission of juris. dictional facts are incurable by amendment. Crehore v. Ohio, etc., Ry. Co., 131 U. S. 240; Dalton v. Milwaukee Mech. Ins. Co., 118 Fed. Rep. 876.