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circuit court;' and if a declaration has been filed, no new declaration is needed. And if complainant amends his bill, the circuit court will not lose its jurisdiction, al. though the amended bill does not show the jurisdiction.9 Jurisdiction of State court ceases on removal.10. A ruling of a State court on a demurrer is of equal weight in the Federal court, after the cause has been removed thereto." In case removed to the Federal from a State court, the Federal court will not review orders made by the State court prior to the removal, if the State court acted within its jurisdiction. 12
The Federal court may dispose of a motion pending at the time of removal for the re-settlement of the form of an order, or dismiss for want of a bond for costs, as the State court could have done.1
After a nonsuit in the Federal court, plaintiff cannot begin a new action in the State court for the same cause, and thus avoid the operation of the statute of limitations. 14 After presentation of the petition and bond in proper form, the jurisdiction is thereupon changed, and subsequent proceedings in the State court are void. 15 The rightful jurisdiction of the State court comes to an end;16 and cannot be restored by mere failure to file a transcript of the record in the circuit court within the time specified. 17 The State court loses jurisdiction upon the filing of the petition for removal upon the ground of citizenship. 18
1 Osgood v. Chicago, D. & V. R. Co., 6 Bisz. 33); Scott v. Clinton & S. R. Co., 6 Biss. 527; Kern v. Huidekoper, 103 U. 8. 485.
2 Osgood v. Chicago, D. & V. R. Co., 6 Biss. 330.
6 West v. Aurora City, 6 Wall. 139; Partridge v. Insurance Co., 15 Wall. 573; Du Vivier v. Hopkins, 416 Mass. 128.
7 Merch. & Manuf. Nat. Bank v. Wheeler, 13 Blatchf. 218.
8 Bills v. New Orleans, St. L. & C. R. Co., 13 Blatchf. 227; West v. Smith, 101 U. S. 263.
9 Briges v. Sperry, 95 U. S. 401. 10 Steamship Co. v. Tugman, 106 U. S. 118; Davis v. S. C., 107 U.S. 597. 11 Davis v. St. Louis & Santa Fe Ry. Co., 25 Fed. Rep. 786. 12 Loomis v. Carrington, 18 Fed. Rep. 97.
13 Milligan v. Lalance & Grosjean Manuf. Co., 17 Fed. Rep. 463; Sutro y. Simpson, 14 Fed. Rep. 370.
14 Cox v. East Tennessee, Virginia, etc. R. Co., 63 Ga. 446.
15 New Orleans, M. & T. R. Co v. Mississippi, 102 U. S. 135; Gordon v. Longest, 41 U. S. 97; Kanouse v. Martin, 56 U. S. 198; Kern v. Huidekoper, 103 U. S. 485; Baltimore & O. R. Co. v. Koontz, 104 U. S. 5; Davis v. South Carolina, 107 U. S. 597; Chesapeake & O. R. Co. v. White, 111 U. S. 134; Home Life Ins. Co. v. Dunn, 86 U. S. 214. Compare Southern Pac. R. Co. v. Superior Court, 63 Cal. 607.
16 Vanhorn v. Litchfield, 70 Iowa, 11; Brown v. Murray, Nelson & Co 43 Fed. Rep. 614.
17 National Steamship Co. v. Tugman, 106 U. S. 118; Baltimore & 0. R. Co. v. Koontz, 104 U. S. 5.
18 Young v. Merchants' Ins. Co., 90 Fed. Rep. 273.
§ 111. Order for remand.
Whenever any cause shall be removed from any State court into
any circuit court of the United States, and the circuit court shall decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed. (Clause 6 of Act of March 3, 1887, 24 U. S. Stats. 552; as corrected August 13, 1888, 25 U. S. Stats. 433.)
§ 111 a. Remanding cause-Want of jurisdiction.-The court will, without formal motion, take notice of a jurisdictional matter which is ground to remand the cause. So if the petition and affidavit fail to bring the case within the statute, it is the duty of the circuit court to remand it. If the case does not substantially involve a controversy within the jurisdiction of the court, it will be the duty of the court to remand it.3 Where the jurisdiction is not clear as to whether a party is a necessary or formal party, and there is no controversy wholly between citizens of different States which can be fully determined, the cause will be remanded. If the case is not one of Federal cognizance, it may be dismissed or remanded at any stage of the proceedings. The Federal court cannot proceed unless it has jurisdiction, whatever the condition of the parties may be, 6 and it must deternine for itself the question of jurisdiction. Where the
jurisdictional facts are contested the circuit court will not determine them on a motion to remand the cause. 8 The cause will be remanded where the proceeding is under a local statute, and could not be litigated in a United States court.9 The objection to the want of jurisdiction appearing on the face of the record must be taken by motion to remand.10 The record, including the petition, must show jurisdiction in the circuit court, and any omission not afterward supplied is cause for a remand; but if the proceedings are so amended as to remove all objectiuns, the cause will not be remanded. 12 That a suit may be removed to, although it could not be originally brought in, the Federal court, is not affected by the provision for the dismissal or remanding of suits not really and substantially involving a dispute or controversy within the jurisdiction of the circuit court. 13 The cause cannot be remanded on the ground that it is not susceptible of decision after complainant files a new bill in the circuit
A cause will not be remanded to the State court on the ground that certain parties are citizens of the same State with the defendant, where it does not clearly appear that such parties are necessary parties; if the matter is doubtful, even, the cause will be retained without any prejudice to a right to make a further showing. 15 When cause is removed on ground of citizenship, and an adverse party moves to remand, denying averments as to citizenship, the burden is on the party at whose instance the suit was removed, to establish the citizenship necessary to give jurisdiction to the United States circuit court. 16 The provision for remand, on its appearing that the Federal court has not jurisdiction, applies only to causes which have been collusively removed; not to a cise of mere discovery, after trial, that the parties are citizens of the same State. 17 If on removal of a cause from a State to a Federal court, it appears that there is no averment of the diversity of citizenship necessary to give jurisdiction, the cause will not be remanded, because it is not, in fact, in the Federal court; it simply will be dismissed;13 but if, after removal, upon plea in abatement, it appears that the allegations as to diversity of citizenship are untrue, the cause will be remanded. 19 Where there is doubt as to jurisdiction, the safer course is to remand. 20
1 Beebe v. Cheeney, 5 Fed. Rep. 389. 2 Dennistoun v. Draper, 5 Blatchf. 336. 3 Stevens v. Richardson, 13 The Reporter, 678; Railroad Co. v. Mississippi, 102 U. S. 135; Ryan v. Young, 20 Alb. L. J. 79; 8 The Reporter, 229.
4 Evans v. Faxon, 10 Fed. Rep. 312. 5 Dennistoun v. Draper, 5 Blatchf. 336; Pollard v. Dwight, 4 Cranch. 421; Wood v. Matthews, 2 Blatchf. 370; Murray v. Patrie, 5 Blatchf. 343.
6 McMurdy v. Conn. G. L. Ins. Co., 9 Ch. L. N. 321; Young v. Andes Ins. Co., 3 Cent. L. J. 719.
7 Field v. Lownsdale, Deady, 288. 8 Dennistoun v. Draper, 5 Blatchf. 336; Hodson v. Milward, 3 Grant, 418. 9 Lehigh Co. v. Central R. Co., 4 Week. N. 187. 10 Hoyt v. Wright, 4 Fed. Rep. 168.
11 Trafton v. Nougues, 4 Sawy. 178; Gold W. & W. Co. v. Keyes, 96 U. S. 199. 12 Edgerton v. Gilpin, 3 Woods, 277. 13 Warner v. Pennsylvania R. Co., 13 Blatchf. 231. 11 Carrington v. Florida R. Co., 9 Blatchf. 467.
15 New York v. New Jersey Steamboat Transp. Co., 24 Fed. Rep. 817; Collins v. Wellington, 31 Fed. Rep. 244. 16 Carson v. Dunham, 121 U. S. 421. 17 Davies v. Lathrop, 21 Blatchf. C. Ct. 164. 18 Merchants’ Bank v. Brown, 17 Fed. Rep. 161. 19 Rumsey v. Call, 28 Fcd. Rep. 769. 20 Wolff v. Archibald, 14 Fed. Rep. 36).
§ 111 b. Later decisions—Want of jurisdiction.—Where the amount in controversy does not exceed $2,000, exclusive of interest and costs, the vircuit court has no jurisdiction, and the cause should be remanded. Where the petition for removal alleges that the matter in dispute exceeds the value of $2,000, which allegation is not controverted by special plea nor by affidavit, a motion to remand to the State court, for want of Federal jurisdiction, must be denied. It is the duty of the circuit court to remand a cause which does not involve a controversy properly within its jurisdiction. So, where the jurisdiction is doubtful, the cause will be remanded. * So it will remand the cause where the only showing in the record is that a Federal question may arise if the evidence proves certain facts. 5
Under section 5 of the Act of March 3, 1875, if a Federal circuit court, after overruling a motion to remand a cause to a State court from which it had been removed on the ground that it involved a Fed.
eral question, disposes of the only Federal question in the case (e. g., by sustaining demurrer to plea), a second motion to remand the cause to a State court is proper. 6 A motion based on a denial of the adverse citizenship of the parties raises an issue upon that question which requires adjudication." The allegation of citizenship existing at the time the petition was filed is not sufficient.S It must affirmatively appear from the record, or it may appear from what appears in the petition and record taken together, that it existed at the time the action began, as well as when the removal was applied for.9 Where it appears upon the face of the affidavit or petition for removal of a suit from a State court that the suit has been improperly removed into the circuit court, it is the duty of that court at any time to remand the suit to the State court. 10
1 Lazansky v. Supreme Lodge K. of H., 32 Fed. Rep. 417. 2 Langdon v. Hillside Coal & I. Co., 41 Fed. Rep. 609.
3 Ayres v. Wiswall, 112 U. S. 187; Central R. Co. v. Mills, 113 U. S. 249; Gold Wash. Co, v. Keyes, 96 U. S. 199; Smith v. Greenhow, 109 U. S. 669; Gage v. Carraher, 101 U. S. 25.
4 Fitzgerald v. Missouri P. R. Co., 45 Fed. Rep. 812.
8 Stevens v. Nichols, 130 U.S. 230; Blackwell v. Lynchburg etc. R. Co., 107 N. C. 217.
9 Herndon v. Ætna F. Ins. Co. (N. C.), 108 N. C. 648; Gibson v. Bruce, 108 U. S. 561; Grace v. Amer. Cent. Ins. Co., 109 U. S. 278; Mansfield etc. R. Co. v. Swan, 111 U. S. 379; National S. S. Co. v. Tugman, 106 U. S. 118; Akers v. Akers, 117 U. S. 197; Hancock v. Holbrook, 112 U.S. 229; Jackson v. Allen, 132 U. S. 27: Houston etc. R. Co. v. Shirley, 111 U. S. 358. 10 Cameron v. Hodges, 127 L'. S. 322.
§ 111 c. Motion to remand.-A motion to remand will not be entertained, unless from unavoidable neces. sity, to ascertain the appropriate tribunal to hear and determine the case;. and the question of the right to remove cannot be raised on motion before trial, but at the trial it may? A plaintiff may move to dismiss, although two terms have elapsed since the filing of the transcript, if he has not appeared and pleaded. The party who alleges that the removal has been improperly made must make such fact clearly appear;4 and the admission by an attorney of service of a rule to plead is an admission