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19. Unnecessary and improper parties.] - Persons who are not proper parties to the action are no obstacle to a removal merely because they appear as parties on the record, if a case under the statute exists as to the persons joined who are proper parties.4

20. Ousting State jurisdiction by filing petition, bond, etc.] The due presentation and filing of adequate papers removes the cause; and subsequent orders in the State court, on proceeding in the cause, are without jurisdiction, even though no order of removal was made in the State court.55

In order to make it the immediate duty of the State court to proceed no further, the petition should be presented to the court if it be in session.56

The mere filing of the papers with the clerk of the State court in vacation ought to be held sufficient, at any rate to suspend the jurisdiction of the State court;57 but when this is done, the defendant should seek an order of removal as soon as the court is in session,58 and must rely on notice given by him to the adverse party, and any receiver or other officer of the court, if there be any concerned, to prevent further proceedings in the State court. A State court will not oust itself of jurisdiction unless a plain case is made.59

54 Bryce r. Southern Ry. Co., 122 Fed. Rep. 709; Wirgman v. Persons, 126 id. 449.

55 Steamship Co. v. Tugman, 106 U. S. 118, 122, rev'g 76 N. Y. 207 (citizenship case); Kern r. Huidekoper, 103 U. S. 485 (citizenship case). But not so absolutely without jurisdiction as to render a subsequent judgment null and void. See paragraph 8, p. 785.

56 Rhode Island Horse Shoe Co. v. Goodenough Horse Shoe Co., 1 Abb. N. C. 12, holding that in the Supreme Court in the city of New York, where there is no vacation or cessation of terms, the petition and bond required under the Act of 1875 must be presented to the court, and that filing them with the clerk is not enough.

Any issues of fact raised upon the petition must be tried in the United States court. Burlington, etc., R. R. Co. v. Dunn, 122 U. S. 513.

S. P., Ex parte Wells, 3 Woods, 128; s. P., Cobb v. Globe Mut. Life Ins. Co., 3 Hughes, 452 (holding that on presentation to a State court of a petition for removal, it is right and proper that the State court should examine the petition to see whether it is sufficient.

57 North Am. L. & T. Co. v. Colonial, etc., Co., 3 S. Dak. 590, 54 N. W., 659. 58 Hall v. Chatt. Agric. Works, 48 Fed. Rep. 599; Roberts v. Chicago, etc., R. R. Co., 48 Minn. 521, 51 N. W. 478.

59 Vose v. Yulee, 99 U. S. 537, 545, rev'g (but sustaining on this point) 64 N. Y. 449, 452. This is the rule followed, I believe by all the State courts.

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1. The right of removal.]—A cause arising or involving controversy under the Constitution or laws of the United States, or treaties made under their authority, may be removed by the defendant or defendants, irrespective of the citizenship or residence of the parties, provided it be a suit of a civil nature at law or in equity, and the amount in controversy is sufficient.61

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The statute includes a case where only the plaintiff's statement of his claim involves such a question.62

It is no obstacle to removal that other questions, not at all depending on Federal law, are also involved in the cause.

2. How the question is raised.]-The Federal question must appear on the face of the complaint or declaration, in order to make a case for the United States court.64 If, therefore, the complaint does not plead or refer to any provision of the Constitution, laws, or treaties of the United States, the fact that defendant asserts such a right or denies to the plaintiff such a right which is essential to his recovery, does not make the action removable, but the defendant is remitted to his writ of error from the State court. Nor can plaintiff, by anticipating and controverting defendant's claim under a Federal statute, made a Federal question.65

The Federal question cannot be raised by allegations in the petition for removal, or in the pleadings following the complaint.66

60 San Joaquin, etc., Canal Co. v. Stanislaus County, 90 Fed. Rep. 516. 61 Act of Congress of Mar. 3, 1887, § 2, p. 759 (above).

62 Tennessee v. Union, etc., Bank, 152 U. S. 454; Houston, etc., R. R. Co. v. Texas, 177 id. 66.

63 Railroad Co. r. Mississippi, 102 U. S. 135; People v. Sanit. Dist. of Chicago, 98 Fed. Rep. 150.

64 Tennessee v. Union Bank, 152 U. S. 454; Spencer v. Duplan Silk Co., 191 U. S. 526. An exception exists in the case of a Federal corporation defendant, to the extent that it may show its status as such in its petition. Texas, etc., Ry. Co. v. Cody, 166 U. S. 606; Scott v. Choctaw, etc., R. R. Co., 112 Fed. Rep. 180.

65 Tennessee r. Union Bank, supra; Florida, etc., R. R. Co. v. Bell, 176 U. S. 321. Nor by setting up a Federal question by way of reply. Houston, etc., R. R. Co. v. Texas, 177 U. S. 66.

66 Chappell v. Waterworth, 155 U. S. 102; Minnesota v. Northern Sec. Co., 194 id. 48, 64.

Imperfection in the form of allegation should not be deemed to prevent the arising of a Federal question which the pleading indicates an intent to raise, but the facts alleged must be sufficient to enable the court to see that the right claimed does really and substantially involve such question."

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A suit cannot be said to be one arising under the Constitution or laws of the United States unless it appears on the face of the complaint, or declaration, that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the Constitution or a law of the United States, or sustained by an opposite construction."

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07 See City Ry. Co. v. Cit. St. Ry. Co., 166 U. S. 557; Nashville, etc., Ry. Co. v. Taylor, 86 Fed. Rep. 168, 178.

68 Starin v. New York, 115 U. S. 248, 257, and case cited; Germania Ins. Co. v. Wisconsin, 119 id. 473; Cooke r. Avery, 147 id. 385; Newburyport Water Co. v. Newburyport, 193 id. 561.

A suit cannot be removed simply because, in its progress a construction of the Constitution or a law of the United States may be necessary, unless it, in part at least, arises out of a controversy in regard to the operation and effect of some provision in that Constitution or law upon the facts involved. Gold-washing & Water Co. v. Keyes, 96 U. S. 199; Bankers' Mut. Cas. Co. t. Minnesota, etc., R. R. Co., 192 id. 371.

Where a party removes, under a statute of the United States, from a State court to the Circuit Court of the United States a case depending, in point of merits, on the right construction of such statute, the Circuit Court cannot dismiss and remand the case on motion on the ground that it has no jurisdiction, because the statute is unconstitutional and void. Mayor v. Cooper, 6 Wall. 247.

When the right of a removal of a cause from a State court to a Circuit Court of the United States is denied by a State court, this denial raises a Federal question for the purpose of a writ of error by the removing party. Oakley r. Goodnow, 118 U. S. 43; Mecke v. Valley, etc., Mining Co., 89 Fed. Rep. 114. (Practice where both courts assume jurisdiction.) See, also, Hickman v. Mississippi, etc., Ry. Co., 97 id. 113.

Corporations.] - Corporations of the United States, created by and organized under acts of Congress, are entitled to remove suits brought against them, on the ground that such suits are suits "arising under the laws of the United States." Pacific R. R. Co. v. Kirk, 115 U. S. 2; Texas, etc., Ry. Co. v. Cody, 166 U, S. 606.

Otherwise of national banks. See Act of Mar. 3, 1887, p. 763 (above), as corrected by Act of 1888; Cont. Nat. Bank v. Buford, 191 U. S. 119.

Proceedings by a State against a corporation created under its own laws, in the nature of quo warranto, for the abandonment, relinquishment, and surrender of its power to another corporation with which it has been consolidated under a law of the United States, and proceedings against the directors of said consolidated company for usurping the powers of such State corporation, are, when in the form of civil actions, suits arising under the laws of the United States. Ames v. Kansas, 111 U. S. 449.

Corporations consolidated under Federal law must be treated as a Federal corporation. Federal Corp. r. Stanford, 70 Fed. Rep. 346.

Judgments.] The fact that a judgment was recovered in a court of the United States does not, in a suit upon that judgment, raise a question under

While the parties are litigating a preliminary and jurisdictional queston, raised by motion, as to whether the State court

the laws of the United States.

Provident Sav. Soc. v. Ford, 114 U. S. 635;

Pope t. Louisville, etc., Ry. Co., 173 id. 573.

The mere fact that a judgment, which it was the object of the suit to impeach as collusively obtained, was obtained in a United States court after improper removal; held, not to raise a Federal question. Rand v. Walker,

117 U. S. 340, 345.

Suits against a receiver appointed by a Federal court are not necessarily arising under Federal laws. Gobleman v. Peoria, etc., Ry. Co., 179 U. S. 335. Grants of lands or franchises.] — In an action against a city to quiet title to lands granted to the city by an act of Congress, for uses and purposes specified in the ordinances of the city, ratified by a specified act of the State legislature, it appearing that the plaintiff claimed as one of the beneficiaries under the grant by the operation of such ordinances, held, that the question of title involved did not arise under the laws of the United States so as to authorize a removal. Hoadley v. San Francisco, 94 U. S. 4.

Right to remove upheld in mandamus proceedings by a State against a railroad company to compel the removal of a bridge over a navigable stream on the line between two States, the maintenance of which bridge was alleged by the company to have been authorized by an act of Congress, and under which it was also alleged to have become a part of a post-road over which, for several years, mails of the United States had been carried. Railroad Co. v. Mississippi, 102 U. S. 135.

Officers.] An action against a marshal of the United States for seizing a stock of goods, more than $500 in value, under authority of a writ from a District Court of the United States, in proceedings in bankruptcy, the suit being on his official bond, and the sureties thereon being joined as co-defendants, is a suit of a civil nature, arising under the Constitution and laws of the United States. Feibelman v. Packard, 109 U. S. 421; Sonnentheil r. Moerlin Brewing Co., 172 id. 401. S. P., Howard v. United States, 184 id. 676. A suit to try the title to a State office, held, not removable on the ground that the opponents of the petitioner had been guilty of a violaion of U. S. R. S., § 5507, in depriving those who would have voted for petitioner of their right to vote. For though in such a case the question whether those so depriving others of the right to vote were guilty of a crime punishable by law, might depend alone on the laws of the United States; yet the effect of such unlawful practices on the election of a purely State officer did not depend on the laws of the United States. Dubuclet v. Louisiana, 103 U. S. 550.

Impairing obligation of contracts.] Where, in an action for trespass for carrying away plaintiff's goods under a tax levy, defendant set up a law forbidding him to receive in payment of taxes coupons such as were offered by plaintiff; and thereupon plaintiff demurred, and upon the record no ground of the invalidity of the law could be inferred, save that it was avoided by the provision of the United States Constitution that forbids a State to pass a law that impairs the obligation of a contract; held, that the case arose under the United States Constitution. Smith v. Greenhow, 109 U. S. 669.

See, also, Stewart v. Virginia, 117 U. S. 612, holding that a proceeding under the Virginia statute to identify coupons tendered in the payment of taxes due the State allowing jury trial, was not a suit of a civil nature arising under the laws or Constitution of the United States.

Patents.]—A suit for moneys alleged to be due to complainant, under a contract whereby certain letters patent granted to him were transferred to the defendant, held, not such as could be removed, as it did not involve the validity or construction of the patents. Albright v. Teas, 106 U. S. 613; Pratt v. Paris Gas Light, etc., Co., 168 id. 255.

has acquired jurisdiction of the person, the suit is not deemed so far brought as to raise a Federal question which it may be intended to litigate on the merits.60

3. Time to apply.]-The petition and bond must be filed in the State court in Federal question cases and in citizenship cases, "at the time, or any time before, the defendant is required by the laws of the State or the rule of the State court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff.70 A contest over a right to a provisional remedy, or the like, does not affect the right of removal.71

The time within which defendant is required to plead, not the day on which he serves or files his answer or plea, marks the limitation of the right of removal.72 The pleading itself need not be served or filed before the application for removal is made, nor until the action is within the Circuit Court, provided it is made to appear in the petition that a controversy exists.73

4. the rule of diligence.] - The Act of 1875 required the application to be made "before or at the term at which said cause could be first tried, and before the trial thereof;" and the settled construction of that clause was that it meant the first term at which the cause was in law triable-the first term in which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations.

If the same rule of diligence is applied as under that act, the defendant will not, perhaps, by consenting to extend

60 Germania Ins. Co. v. Wisconsin, 119 U. S. 473.

In an action in a State court against a corporation, on a judgment recov ered against it in a United States Circuit Court, a ground of removal is not furnished by allegations of the defendant that it never was an inhabitant of the district where the judgment was recovered and never was served with process in such district, without negativing service of process on an agent of the defendant in such district, and the actual appearance of the defendant in the suit. Provident Sav. Inst. r. Ford, 114 U. S. 635 (application on ground of question being involved under U. S. R. S., § 739).

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70 Act of Mar. 3, 1887, § 3, as amended by Act of Aug. 13, 1888. demurrer, or a plea in abatement, even to the jurisdiction, is such an answer or pleading within the statute. Martin v. Balt. & O. R. R. Co., 151 U. S. 673, 686. Leave to answer over, after over-ruling defendant's demurrer. does not extend the time. McDonald r. Hope Mining Co., 48 Fed. Rep. 593.

71 Sidway r. Missouri Land, etc., Co., 116 Fed. Rep. 381; Ella v. Brown, 136 id. 439.

72 Gavin r. Vance, 33 Fed. Rep. 84. A different rule applies in those jurisdictions where the time within which to plead is not definitely fixed. See Lockhart r. Memphis, etc., R. R. Co., 38 id. 274.

73 Wilcoxen t. Chicago, etc., R. R. Co., 116 Fed. Rep. 444.

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