5 6 of the regularity of the proceeding. If a case has been improperly removed, the circuit court may remand it, although the party seeking a removal has filed a cross-bill in the circuit court against parties who are all citizens of a different State. So, also, if an order for removal was improperly made. That the proceedings sought to be removed are a mere mode of execution and relief inseparably connected with the original judgment, will be grounds for remand; but otherwise, if they con titute an independent controversy, with new parties and new liabilities. 10 When a cause is once removed, and there are no jurisdictional objections to its remaining, it will not be remanded for defects or irregularities that can be remedied, or which have not worked any prejudice to the opposite party." Where the cause is one of Federal cognizance, the right to have it remanded because of defects in the mode of removal may be waived;12 but there is no waiver of the right where the cause is not really and substantially one of Feder jurisdiction. 13 This section did not intend that the suit should be dismissed or remanded on account of irregularities, provided it satisfactorily appears that the circuit court has jurisdiction. If the citizenship of the petitioner is in dispute, the question will not be decided on motion to remand.15 Where there is no allegation as to the citizenship of the plaintiff, the cause will be remanded;16 or where citizenship is alleged in the present tense; and the objection will not be entertained if the information concerning his interest is vague or undefined, or there is delay in making the objection.18 Where a suit is removed on account of alienage, it will not be remanded for the reason that the alien subsequently became a citizen.19 If the citizenship of petitioner is not seriously contested, the case may be remanded on motion. 20 Where a minor was a party, it was held that he was incapable of consenting to the removal, and the cause was remanded. 21 The motion to remand admits the facts set out in the petition, 22 and the truth of the averments made in the petition cannot then be inquired into. 23 If the petition and the record state, as grounds of removal, facts which are not true as to citizenship, or value where value does not appear in the pleadings, issue may be taken thereon by plea on abatement in the circuit court. 24 On the de 14 termination of a State court that the petition is sufficient, it will be the duty of the Federal court to remand the cause. 25 Where the prayer of the petition did not ask for a removal of the entire suit under the Act of 1875, the cause will be remanded. 26 On motion to remand, the petition for the removal is the basis of jurisdiction.27 The court on motion to remand will not inquire into the truth of the allegation or sufficiency of the pleadings, but will leave such matters to the trial of the case. 28 1 Dennistoun v. Draper, 5 Blatchf. 336. 5 Abranches v. Schell, 4 Blatchf. 256. 6 Pollard v. Dwight, 4 Cranch, 421; Urtetique v. D'Arcy, 9 Peters, 692; Ins. Co. v. Francis, 11 Wall. 210; Field v. Lownsdale, Deady, 288; Galvin v. Boutwell, 9 Blatchf. 470; State v. Babcock, 4 Wash. C. C. 345. 7 Donahoe v. Mariposa L. & M. Co., 5 Sawy. 63. 8 Field v. Lownsdale, Deady, 288. 9 Buford v. Strother, 10 Fed. Rep. 406; Boyd v. Bradsheet, 10 Fed. Rep. 406. 10 Buford v. Strother, 10 Fed. Rep. 406. 11 Dennis v. Alachua Co., 3 Woods, 683. 12 Price v. Sommers, 8 Ch. L. N. 290. 13 Price v. Sommers, 8 Ch. L. N. 290. 14 Osgood v. Chicago etc. R. R. Co., 2 Cent. L. J. 275; 2 Cent. L. J. 283; 7 Ch. L. N. 211. See Parker v. Overman, 18 How. 141. 15 Heath v. Austin, 12 Blatchf. 320. 16 Abercrombie v. Dupins, 1 Cranch, 343; Wood v. Wagnan, 2 Cranch, 9; Sherman v. Windsor Manuf. Co., 11 Fed. Rep. 852. 17 Beebe v. Cheeney, 5 Fed. Rep. 388. 18 Hervey v. Illinois M. R. R. Co., 12 Ch. L. N. 407. 19 Houser v. Clayton, 3 Woods, 273. 20 Galvin v. Boutwell, 9 Blatchf. 470. 21 Kingsbury v. Kingsbury, 3 Biss. 60. 22 Buttner v. Miller, 1 Woods, 620. 23 Texas v. Texas & Pac. R. R., 3 Woods, 308. 24 Coal Co. v. Blatchford, 11 Wall. 172; Heath v. Austin, 12 Blatchf. 320. 25 Urtetique v. D'Arcy, 9 Peters, 692. 26 Clark v. Chicago M. & St. P. R. R. Co., 11 Fed. Rep. 355; Sweet v. Same, 11 Fed. Rep. 355. 27 Kessinger v. Hinkhouse, 27 Fed. Rep. 833; McLane v. Leicht, Id. 887. 23 Hux v. Caspar, 31 Fed. Rep. 499 § 111 d. Later decisions on motion to remand. The motion to remand must be made in the circuit court. 1 A motion to remand a suit to the State court, on the ground that the Federal court could not take jurisdiction of it, may be made prior to the first day of the next session of the court, when the party removing it is required to file the record; and the other party may file the record for the purpose of challenging the jurisdiction of the Federal court. Where, on application by a defendant to remove the cause on the face of the record, the defendant is not entitled to such removal, he will not be permitted to contend for a contrary decision of the same point in the circuit court, upon a motion by plaintiff to remand the cause as not being removable.3 To give the court jurisdiction on a motion to remand to the State court, it must clearly appear from the record that the construction of some of the provisions of the Constitution, laws or treaties must be met and decided before the issues in the particular cause can be finally disposed of. The plaintiff does not waive his right to remand a cause on the ground that it does not contain a separable controversy by once obtaining a continuance in the Federal court, as the question is jurisdictional. After disposing of the sole Federal question on demurrer, a case may be remanded, although before disposing of the demurrer a motion to remand has been denied. Where the petition distinctly alleges that a Federal question is raised, an answer filed after motion to remand, setting out more in detail the nature of the defense, may be considered. An affidavit cannot be considered in determining the right to remove a cause on a motion to remand. It must be determined by the record presented to the State court. Where the petition for removal alleges that certain defendants were wrongfully made defendants for the purpose of preventing the removal, the burden of proof to establish that fact, on motion in the circuit court to remand, is on the petitioner. Where defendant pleaded to the complaint in February, 1887, and filed a petition for removal in May, under the Federal Act of March 3, 1887, the case must be remanded. 10 On a motion to remand, the court will not anticipate the trial of the case, and proceed to construe an Act of Congress concerning which a Federal question is presented. A motion to remand because the cause was assigned so as to make both parties citizens of one State will be denied where the action of the State court thereon is not shown. 21 DESTY REMOVALS. -34 1 Bushnell v. Parker, 37 N. Y. State Rep. 298. 2 Mills v. Newell, 41 Fed. Rep. 529. 3 Beadleston v. Harpending, 32 Fed. Rep. C44. 4 State of Iowa v. Chicago, M. & St. P. R. Co., 33 Fed. Rep. 391. 5 Southworth v. Reid, 36 Fed. Rep. 451. 6 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. Rep. 401. 7 Kentucky v. Louisville Bridge Co., 42 Fed. Rep. 241. 8 Camprelle v. Balbach, 46 Fed. Rep. 81. 9 Plymouth Consol. Gold Min. Co. v. Amador & Sac. Canal Co., 118 U. S. 264. 10 Manley v. Olney, 32 Fed. Rep. 708. 11 Lowry v. Chicago, B. & Q. R. Co., 46 Fed. Rep. 83. 12 Smith v. Chicago, etc. R. Co., 30 Fed. Rep. 722. § 111 e. Either party may file record and move to remand cause.-Under a rule of court which provides that either party may cause a copy of the record to be filed, a plaintiff could, without leave of court, cause such copy to be entered and move to remand the cause.' A lapse of time and the taking of preliminary proceedings after removal are not a waiver of the right to a remand. Under the Act of Congress of March 3, 1887, providing that a party shall file his petition and bond in the State court, a filing of the petition and bond with the clerk of the State court is not sufficient, as the court itself has a right to pass upon them, and the cause will be remanded. Where a cause was removed on two grounds, or two grounds for removal are well stated in the petition, the adverse party cannot have it remanded if one good ground appears of record. 1 Anderson v. Appleton, 32 Fed. Rep. 855. 2 Bronson v. St. Croix Lumber Co., 32 Fed. Rep. 634. 3 Shedd v. Fuller, 36 Fed. Rep. 609. 4 Neale v. Foster, 31 Fed. Rep. 53. § 111 f. Motion when granted.-The removal of a cause to a Federal court by a resident of the State in which the action was brought, after the passage of Act of Congress of March 3, 1887, but in ignorance of that act, being improper, a motion to remand must be granted.1 Where a non-resident creditor of an estate removes the entire proceeding it will be remanded, if the administrator is a resident of the same State as the widow, who claims a year's support. A defendant cannot prevent a 2 remanding by showing that he is in reality plaintiff, when the parties are arranged according to their legal interests, and that another is the real defendant. A cause removable solely upon the ground of a separable controversy as to one defendant, upon discontinuance in the circuit court as to him must be remanded. * 1 Bank of the Metropolis v. Peloubet, 12 N. J. L. J. 344. 2 McElmurray v. Loomis, 31 Fed. Rep. 395. 3 Mayer v. Denver, T. & Ft. W. R. Co., 41 Fed. Rep. 723. 4 Texas Transp. Co. v. Seeligson, 122 U. S. 519. § 111 g. For failure to file record. -Failure to file a record on or before the first day of the next term of the Federal court does not deprive it of jurisdiction; but if not filed in time, and the Federal court cannot cure the defect, the cause will be remanded.2 In opposing a motion for remanding a cause, the affidavit by defendant's attorney that a failure to file the record was through inadvertence, must state the facts, from which the court may see that it was through inadvertence or accident.3 Where the case is improvidently placed on the docket of the circuit court, with or without its order, objections may be made at any time; or if the record shows on its face that the case is not one which may be removed under the statutes." If a defect or omission in the record can be cured by certiorari, such defect is no ground for remanding the cause. In case o1 non-appearance, the circuit court may remand. Where the record is not filed within the term fixed by statute, remand is in discretion of Federal court.8 Causes are not necessarily remanded for failure to file record at the first term of court. The court may permit it to be filed afterward, although not bound to do so. In one case, on failure through neglect of counsel to transmit the record for fifteen months, the cause was, on motion of the other party, remanded to the State court.11 9 5 10 1 McLean v. Chicago, St. Paul etc. R. Co., 16 Blatchf. 309; Jackson v. Mutual Ins. Co., 3 Woods, 413; Hyde v. Phoenix Ins. Co., 2 Dill. 525; Clippinger v. Missouri Valley L. Ins. Co., 8 Ch. L. N. 115. See Kidder v. Featteau, 2 Fed. Rep. 616. 2 Cobb v. Globe etc. Ins. Co., 3 Hughes, 452; Bright v. Milwaukee R. Co., 14 Blatchf. 366; Broadnax v. Eisner, 13 Blatchf. 333; McLean v. St. P. & C. R. Co., 20 Alb. L. J. 78; Wilcox v. Follett, 10 Ch. L. N. 99. 3 McLean v. Chicago & St. P. R. Co., 16 Blatchf. 339. |