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to be, so to speak, hesitating in suspense between the two courts; the petitioner treating it as removed, and his adversary treating it as still pending in the State court.
Therefore, if it be desired to foreclose further controversy in the State court by taking an express order of removal or approval of bond, the practitioner will draw his petition with sufficient fullness to substantiate the facts mentioned in the statute; and if he uses the pleadings, as they properly may be used for this purpose in aid of the petition, he will, in the order, recite the fact that they were read on the application.
The forms here given are in some respects made more full than absolutely necessary to effect removal, by reason of the advantages of thus taking an order in the State court.
10. The petition,-- facts.] - It is enough if the facts as to citizenship appear either by the petition or by the record. Thus, if the petition alleges citizenship in the present tense, it is not defective in not alleging that it existed at the commencement of the action, if that fact is alleged in a complaint served with the summons.26
Mention of the citizenship in the bond is not enough. But amendment may be allowed by filing an affidavit of the fact.?
The petition may be supported by accompanying affidavits, and other documentary evidence presented with it, to substantiate facts necessary to be shown and not appearing by the record; and all may be read together as parts of the same instrument.28
26 Steamship Co. o. Tugman, 106 U. S. 118, rev'g 76 N. Y. 207. In this case the summons and complaint were served on the same day.
Removal cases, 100 U. S. 457, 474 (holding that the United States court could resort to plaintiff's affidavit on the record that defendant was a nonresident, and to descriptions of the parties contained in instruments pleaded, as evidence of citizenship or non-residence, in support of the petition).
S. P., Bondurant v. Watson, 103 U. S. 281, 286; McLane v. Leicht, 27 Fed. Rep. 887.
27 Field r. Blair, 1 Code Rep. (N. S.) 361, aff'g 1 id. 292.
Reference may be had to the whole record (City of Ysleta r. Canada, 67 Fed. Rep. 6; Roberts v. Pacific, etc., Nav. Co., 121 id. 785), although a paper improperly in the record may not be considered. Denny V. Pironi, 141 U. S. 121.
28 Yulee 1. Vose, 99 U. S. 539, 545.
The certificate of the clerk, under seal of his office, that the judge was duly qualified, is not necessary to the admissibility in evidence of an exemplification of a record of naturalization, in a question of removal from a State to a United States Circuit Court. St. Paul, Minn., etc., R. R. Co. r. Burton, 111 U. S. 788.
On a joint petition, removal as to one may be ordered if he could have petitioned alone, although removal be denied as to the other. 29
11. -- reference to statute.] — It is not essential to mention in the petition the statute under which the petitioner is entitled to proceed, nor is a mistake in mentioning the wrong one any ground for refusing removal if the proper facts are shown. 30
12. - situation of the cause.] — The weight of authority, at least in the decisions in State courts, is to the effect that the re quirement of a petition means such a petition as is regular and in proper form, according to the general practice of the State court in question, respecting applications on petition. For this reason, under the New York General Rules, if the petition be more than two folios in length, it should be folioed ;31 and if an ex parte order of approval and removal is asked, or an order to show cause, the petition should allege that no previous application has been made, etc.32
13. - signature and verification.] — The State court may properly refuse to act upon a petition which is not signed33 and verified34 according to the ordinary course of its own practice.
An attorney or counsel appearing for the party has implied authority to sign the petition,35 and an agent may sign if his authority be proved by the verification or other sworn allegation.
In either case the appropriate form of signature is to subscribe the name of the party, adding “by” his attorney, etc.
29 Dart r. Walker, 4 Daly, 188.
30 Street R. R. Co. v. Hart, 114 U. S. 654, 660 (holding that a statement in a petition that the removal is desired under the local prejudice act does not impair the efficacy of a petition that states facts that make out a case for removal under the citizenship act).
S. P., Dart r. Walker, 4 Daly, 188.
34 Ogden r. Baker, 1 Green (13 N. J. L.), 75. The omission to verify may be waived, especially when all essential facts appear elsewhere in the record. Howard r. Gold Reefs of Georgia, 102 Fed. Rep. 657.
But in Shaft v. Phænix Mut. Life Ins. Co., 67 N. Y. 544, 23 Am. Rep. 138, is a dictum that the petition need not be verified unless under a statute expressly requiring it.
35 Remoral cases. 100 U. S. 457, 471; Vandevoort r. Palmer, 4 Duer, 677. Contra, Kirkpatrick v. Hopkins, 2 Miles, 277.
If the petition is by a defendant who has only appeared in the State court specially for the purpose of contesting its jurisdiction over his person, the signature of the petition should be qualified as for the purpose of the application only, which will enable the defendant to go on with the same objection in the United States court. 36
Objection to the omission of signature37 or verification 38 comes too late when first made in the United States court, except that if he petition be relied on as evidence of any fact necessary to be hown to the Circuit Court in order to give jurisdiction — as, for instance, the existence of local prejudice — it ought to be duly erified in order to suffice as proof in that court.39
14. Bond — form.] — The general rules as to the requisites of bond have been already stated.40 Formal defects and irregu. rities may be amended. 41 A general condition that the petitioner shall “ do, or cause to done, such other and appropriate acts, etc., as required by law be done upon the removal of a suit into the United States CirEt Court from a State court,” is sufficient, but the practice is to ecify all the acts specified in the Statute. 42 15. — amount.] — The amount of the bond must be sufficient Indemnify the adverse party for any breach of the condition.43
Miner r. Markham, 28 Fed. Rep. 387; Goldey v. Morning News, 156 U. S. 525. Removal cases. 100 U. S. 457. Howard v. Gold Reefs of Georgia, 102 Fed. Rep. 657; Street R. R. Co. art, 114 U. S. 654, 660 (where, however, the objection was not made on motion to remand). Sutherland v. Jersey City, etc., R. R. Co., 22 Fed. Rep. 356 (holding that arture from the State law, in the authentication of the affidavit, availed
objection in the Circuit Court). Re Penn. Ry. Co., 137 U. S. 451 of petition as proof).
ee p. 25 of this volume. See, also, Burdick v. Hale, 7 Biss. 96; Austin qan, 39 Fed. Rep. 626 (holding that a bond with a blank space for penal vas ineffectual to accomplish removal). But the better authority is to ect that an omission to name the penal sum is not fatal, but amendable. n 0. Austin Mfg. Co., 76 Fed. Rep. 616; Groton Bridge, etc., Co. 1'. ridge Co., 137 id. 284. -erman Wheel Co. v. Pope, 46 Fed. Rep. 577. oke v, Seligman, 7 Fed. Rep. 263, 17 Blatchf. 452 (holding that where clause was contained, the omission to express the obligation to enter bail should be disregarded). Compare, however, Harrold v. Arrington,
233. Blanchard v. Dwight, 12 Wend. 192, it was said that $1,000 was where defendant had not been held to bail. Five hundred dollars was icient in Groton Bridge, etc., Co. v. Am. Bridge Co., 137 Fed. Rep. 284.
The question of sufficiency will rest in the last resort with the United States courts; but if an order of approval and removal is to be asked from the State court, that court must also be satisfied, and though it cannot arbitrarily refuse to receive a bond apparently sufficient, without giving opportunity to justify the sureties or otherwise remedy a defect," it may require as a condition of making any order that the amount be sufficient in its judgment, and that the sureties justify.
16. obligors.] - It is usual, but not essential, to have the petitioner join in the bond. 45
17. — acknowledgment, etc.] — The State court may properly refuse to act upon a bond which is not acknowledged or proved, or which is not accompanied by an affidavit to the sufficiency of the surety; but if it accepts and approves a bond which lacks those formalities, the objection will not avail in the Federal court. 46
18. Separable controversy.] — If there is, in a suit of which the Circuit ('ourt is given jurisdiction, a controversy of a remorable character, “which is wholly between citizens of different States, and which can be fully determined between them, then either one or more of the defendants actually interested in such controversy, may remove the suit."47
If the complaint charges all the defendants as joint contract
44 Taylorr. Shew, 54 N. Y. 75 (reversing judgment for error in this. respect).
45 Nye r. Northern Cent. Ry. Co., 24 Hun, 556; People's Bank r. Ætna Ins. Co., 53 Fed. Rep. 161; S. P., p. 26 of this volume. Contra, Rough v. Booth (Cal.), 3 Pac. Rep. 91.
46 Cooke 1. Seligman, 7 Fed. Rep. 263, 17 Blatchf. 452.
47 Act of Congress, 1875, as amended by Act of Mar. 3, 1887, § 2, p. 159 (abore).
Crump t. Thurber, 115 U. S. 56; St. Louis & San Francisco Ry. Co. e. Wilson, 114 id. 60 (suits to compel transfer of stock. Controversy with adverse claimant not separable from that with the corporation). Followed in Patterson i'. Farmington St. Ry. Co., 111 Fed. Rep. 262; distinguished in Lake St. El. R. R. Co. 1'. Ziegler, 99 id. 122.
Rand r. Walker, 117 U. S. 340 (controversy with defendant who held legal title for joint benefit of himself and another defendant, not separable froin that with the latter).
Avres r. Wiswall, 112 U. S. 187; Coney r. Winchell, 116 id. 227; U. S. Morig., etc., Co. r. McClure, 70 Pac. Rep. 543 (foreclosure; mortgagor sought to be charged with deficiency, a necessary party, and controversy not separable).
ors or joint wrongdoers, it is enough that the petition allege that the petitioners are not jointly interested or liable with the other defendants, and that their controversy with the plaintiff is a separate one,48 or that the defendants, as to whom removal could not be ordered, were merely formal parties, or joined merely in order to prevent removal. 49 But joinder of sham parties or nominal parties without interest will not defeat removal.50
The mere fact that the defenses or answers are separate does not make separate controversies.61
The right to remove on the ground of a separable controversy is confined to the parties actually interested in such controversy.
If a separable controversy exists, a removal for such cause takes the whole suit to the Circuit Court, and leaves nothing behind for trial in the State court.53
Bacon 1. Rives, 106 U. S. 99 (stranger to the controversy, who occupies substantially the position of a garnishee, is separable).
Fraser v. Jennison, 106 C. S. 191; Blake v. McKim, 103 U, S. 336 (co-executors not separable).
Fidelity Ins. Co. v. Huntington, 117 U. S. 280; Turnbull Wagon Co. v. Sinthicum Carriage Co., 80 Fed. Rep. 4 (creditors suit; controversy raised by lienor claiming priority against plaintiff not separable).
The reader will find other authorities on this question of separable controversy and joint and nominal parties collected under paragraph 4 of divisiou IV (below), and in Desty's Federal Procedure, 8 639a.
48 Little i. Giles, 118 U. S. 596; Chesapeake, etc., R. R. Co. v. Dixon, 179 id. 131.
49 Chesa peake, etc., R. R. Co. v. Dixon, supra; Plymouth Gold Mining Co. 0. Amador & Sacramento Canal Co., 118 U. S. 264; S. P., Pirie v. Tvedt, 115 id. 41, and see dissenting opinion.
50 Wergman v. Persons, 126 Fed. Rep. 449; Bryce r. Southern Ry. Co., 122 id. 709; Reeves v. Corning, 51 id. 778. The petitioning defendant must allege and prove the improper joinder. Railroad Co. v. Wangelin, 132 U, S. 599; Union Term. Ry. Co. v. Chicago, etc., R. R. Co., 119 Fed. Rep. 209.
51 Little v. Giles, 118 U. S. 596; Brooks v. Clark, 119 id. 502; Rosenthal v. Coates, 148 id. 142; Ayres v. Wiswall, 112 id. 187; St. Louis & San Francisco Ry. Co. v. Wilson, 114 id. 60; following Louisville & Nashville R. R. Co. t. Ide, 114 id. 52.
So held also of separate answers by several defendants sued jointly in tort, in which each averred that he acted separately on his own account, and not jointly, in the acts complained of. Sloane 1. Anderson, 117 U. S. 275; Chesapeake, etc., R. R. Co. v. Dixon, 179 id. 131.
52 Rand v. Walker, 117 U. S. 340; Merchants' Press Co. v. North Am. Ins. Co., 151 id. 368. It is necessary, in the absence of a separable controversy, that all of the defendants join in the application for removal. Railroad Co. r'. Martin, 178 U, S. 245; New Eng. Water Works Co. v. Farmers' L. & T. Co., 136 Fed. Rep. 521.
53 Barney i. Latham, 103 U. S. 205; Brooks v. Clark, 119 id. 502 (WAITE, Ch. J.). Compare Girardey r. Moore, 5 Cent. L. J. 78. Where the separable controversy has been discontinued or settled, after removal, the case, or what remnant may remain, must be remanded. Connell v. Smiley, 156 U. S. 335; Young v. Hoffman, 108 Fed. Rep. 701.