« ForrigeFortsett »
MAY Ś 1951
E. R. ANDREWS PRINTING CO., Rochester, N. Y.
§ 1136. Removal petition—time for filing.
Whenever any party entitled to removelb) any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, [i. e. removal on the ground of local prejudice.]3 may desire to remove such suit from a State court(c) to a circuit court of the United States, he may make and file a petition[d]-[h] in such suit in such State court 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, (1)-[m] for the removal of such suit into the circuit court, to be held in the district[n] where such suit is pending.
Part of $ 3, act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended Mar. 3,
1887, c. 373, 24 Stat. 552, as corrected Aug. 13, 1888, c. 866, § 1, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 510.
[a] History of provision-inapplicable to prejudice and local influence
As originally enacted in 1875 this portion of the statute provided that “whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit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.” The earlier provision of R. S. $ 639, based upon an act of 1860 was yet more liberal as to time of removal and permitted removal “at any time before the trial or final hearing.”4 The recent legislation therefore shows a marked tendency to restrict the exercise of the right of removal.5
As originally enacted the statute of 1875 did not cover the right of removal for prejudice and local influence, but left the portion of R. S. § 639 dealing therewith in force. It is to be observed that the mode of proceeding prescribed by the amendatory acts of 1887 and 1888 supra, and now in force, does not apply to cases where removal is sought for prejudice or local influence. In such cases removal may still be had at any time before the trial thereof."6 Since the act of 1887 removal can only be had by a defend
2 See ante, $$ 133–136.
6 Ante, $ 137. Fisk v. Henarie, 142 3.Inte, $ 136. For procedure in ('. S. 466, 35 L. ed. 1080, 12 Sup. Ct. such cases see post, $ 1143.
Rep. 207; Whelan v. New York, etc. 4 See Winkler v. Chicago, etc. R. R. R. 35 Fed. 849, 1 L.R.A. 65; HanR. 108 Fed. 307. The act of 1789, $ rick v. Hanrick, 153 U. S. 197, 38 L. 12 (1 Stat. 73 C. 20.), required re. ed. 687, 14 Sup. Ct. Rep. 835; Tennesmoval petition to be filed when ap- see v. Union, etc. Bank, 152 U. S. pearance was entered.
454, 38 L. ed. 512, 14 Sup. Ct. Rep. 5 See infra note [i].
(54; Tullock v. Webster Co. 40 Fed.
ant to a controversy,7 and hence the substitution of “any party” ut supra, for “one or more of the plaintiff's or defendants.”
[b] Parties entitled to remove.
The broaid question as to what persons have a right of removal is neces. sarily involved in the discussion elsewhere,10 of the circuit court's jurisdiction upon removal. Except in case of a separable controversy, 11 it is the rule that if one of the parties entitled to remove has lost his right by failure to exercise it in due time, the right of all is barred.12 Where one defendant has suffered a default his co-defendant cannot remove.13 So one who makes himself a party by intervention or otherwise is subject to all existing obstacles to removal.14 Though if plaintiff adds a party defendant who is in fact the proper defendant, and the proceeding is discontinued against another, the new defendant's right of removal is unaffected by the non-action of the first.15 Indeed it would seem that any change in parties amounting in effect to the institution of a new suit would initiate a new right of removal unaffected by the prior status of the case. 17 It has been held recently that a new defendant may remove where a Federal question exists, though the original defendant has lost his right and there is no separable controversy.18 A state court having acquired jurisdiction of a foreign corporation by proceeding of foreign attachment, a Federal court has jurisdiction on the removal of the cause by a garnishee.19 All the parties entitled to remove must join in the petition.20 Substituted parties are subject to the disabilities of their predecessors as respects removal.1 A bank receiver cannot remove a suit in which he is substituted after his ap
706; Campbell v. Collins, 62 red. v. Ins. Co. 117 Fed. 999; Hakes y. 849.
Burns, 40 Fed. 33. i Except however in cases of claim- 15 Amer. Nat. Bank v. Nat. B. Co. ants under land grants from dif- 70 Fed. 422. ferent states. See post, $ 1139. 17See Shirley v. Waco T. P. 13 Fed. 10Ante, & 133 et. seq.
705, 4 Woods, 41). 11 Ante, & 135.
18Green v. Valley, 101 Fed. 882. 12 Fletcher v. Hamlet, 116 U. S. 19Greevy v. Jacob Tome Institute, 410, 29 L. ed. 679, 6 Sup. Ct. Rep. 132 Fed. 408. 426: Rogers v. Van Nortwick, 45 Fed. 20 Fletcher V. Hamlet, 116 U. S. 514; Calderhead v. Downing, 103 Fed. 410, 29 L. ed. 679, 6 Sup. Ct. Rep. 27.
426: Stone v. South Carolina, 117 13 Brooks v. Clarke, 119 L'. S. 511, C. S. 433, 29 L. ed. 962, 6 Sup. Ct. 30 L. ed. 482, 7 Sup. Ct. Rep. 301; Rep. 799; Chicago, etc. Ry. v. Martin, Patchin v. Hunter, 38 Fed. 52; Led- 178 U. S. 219, 44 L. ed. 1056, 20 Sup. erer v. Sire, 105 Fed. 530.
Ct. Rep. 854. 14('able v. Ellis, 110 U. S. 389, 28 1 Houston, etc. Ry. v. Shirley, 111 L. ed. 186, 4 Sup. Ct. Rep. 85; Jef. U, S. 361, 28 L. ed. 455, 4 Sup. Ct. ferson v. Driver, 117 U. S. 274, 29 Rep. 47:2; Goodnow v. Dolliver. 26 L. ed. 898, 6 Sup. Ct. Rep. 730; Fed. 470 (administrator); RichBrooks v. Clark, 119 U. S. 513, 30 mond, etc. R. R. v. Findley, 32 Fed. L. ed. 485, 7 Sup. Ct. Rep. 304; Olds 642 (lessee) ; Burnham v. First lat. Co. v. Benedict, 67 Fed. 4, 14 C. C. A. Bank, 53 Fed. 167, 3. C. C. A. 486; 285: Farmers', ets. Bank v. Sehuster, Jarhoe v. Templer, 38 Fed. 217. 86 Feu. 165, 29 C. C. A. 649; Kidder
pointment. Discontinuance against one whose presence is a mere device to bar removal, will enable the remaining defendants then to remove.3
[c] Section permits removal only from “a State court."
It makes no difference whether the State court is of limited or of general jurisdiction. But a county board of commissioners is not a State court, 7 and it has been said that a justice's court is not a State court.& When the State law provides for appeal from county commissioners to the State court and the issue is there triable as an original proceeding, removal may be had within proper time after the proceeding is initiated in the court.9
 Necessity for petition and for notice of hearing.
The transfer of the right to hear and decide a cause from the State to the Federal court is effected by the filing of proper removal petition and bond.12 These may therefore be considered jurisdictional requirements necessary to initiate the proceedings in the Federal court, just as some sort of complaint, bill, or declaration by a plaintiff is a necessary preliminary to the exercise of jurisdiction in any cause. It is settled that they cannot be dispensed with by stipulation or consent.13 It is unnecessary to give notice to the opposite party of the time and place of presenting the petition and bond for removal,14 regardless of the requirements of State rules of prac. tice.15 The proceeding is ex parte.16 No order of removal need be made.17
(e) Filing petition in State court.
The petition and bond should be filed in the court, which, in most juris. dictions, means in the clerk's office of the county in which the venue is laid, just as other papers in a suit are filed; and the approval of them, when filed in another county where the court is then sitting, will not effect a
2Speckert v. German Nat. Bank, 13Kingsbury v. Kingsbury, 3 Biss. 98 Fed. 154, 39 C. C. A. 682.
60, Fed. (as. No. 7.817; First Nat. 3 Infra note .
Bank of Parkersburg v. Prager, 91 6Gaines v. Fuentes, 92 U. S. 10, Fed. 689, 34 C. C. A. 51; Olds W. 23 L. ed. 524.
Works v. Benedict, 67 Fed. 1, 14 C. 7Fuller v. Colfax Co. 14 Fed. 177, C. A. 285. The petition would seem 4 McCrary, 535.
to be a pleading rather than process, 8 Rathbone Oil Co. v. Rauch, 5 W. see inira note [f]. Va. 79.
14 Fisk 1. R. R. Co. 8 Blatchf. 247, 9 Delaware Co. Comrs. v. Diebold, Fed (as. No. 4.828; Young v. Mer133 U. S. 487, 33 L. ed. 674, 10 Sup. chants Ins. (o. 29 Fed. 274; StasCt. Rep. 399.
burger v. Beecher, 44 Fed. 213; Ashe 12 Manning v. Amy, 140 l'. S. 140, v. Union Cent. L. I. Co. 115 Fed. 35 L. ed. 386, 11 Sup. Ct. Rep. 707 ; 235. Marshall v. Holmes, 141 U. S. 595, 15 Chiatovich v. Hauchett, 78 Fed. 35 L. ed. 870, 12 Sup. Ct. Rep. 62; 193. The filing of petition without bond 16 Creagh v. Equit. L. Ass. 83 Fed. is not enough: Gregory v. Hartley, 849. 113 U. S. 745, 28 L. ed. 1150, 5 Sup. 17 Ashe v. Union C. L. I. Co. 115 Ct. Rep. 743; Crehore v. Ohio, etc. Fed. 235. See post, § 1138[d]. Ry. 131 U. S. 244, 33 L. ed. 144, 3 Sup. Ct. Rep. 692.