peal had been taken would be insufficient. 20 This section provides that this writ shall command the State court to make return of the record of the cause removed.1

§ 1142. Plaintiff may be ordered to replead if removing party

cannot get record.

If it shall be impossible for the parties or persons removing any cause under this act, or complying with its provisions for the removal thereof, to obtain such copy, [i. e. copy of the record] for the reason that the clerk of said State court refuses to furnish a copy on payment of legal fees, or for any other reason, the circuit court shall make an order requiring the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said circuit court shall require the other party to plead, and said action or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires a copy of the record to be filed as aforesaid.

Part of § 7, act Mar. 3, 1875, c. 137 18, Stat. 472, U. S. Comp. Stat. 1901, p. 512.

R. S. § 6454 provides generally for the relief of Federal suitors unable to obtain certified copies of State court records. The words "the prosecutor in any such action or proceedings to enforce forfeiture or recover penalty as aforesaid" are not clear, since they seem to refer only to plaintiffs in certain kinds of actions and "as aforesaid" does not appear to have an antecedent. There seem to have been no cases in which it has been necessary to resort to the above substitute for a proper transcript.

§ 1143. Procedure on removal for prejudice or local influence. In cases where removal is sought for prejudice or local influence the procedure is not governed by the preceding sections. The right exists at any time before trial, and application is to the circuit court and not to the State court.[e] Defendant seeking

20 Ellerman v. New Orleans R. Co. 2 Woods, 120 Fed. Cas. No. 4.382; Insurance Co. v. Morse, 20 Wall. 445. 22 L. ed. 365; see Bell v. Dix, 49 N. Y. 232.

1United States v. McKee, 4 Dill. 1, Fed. Cas. No. 15.687. 4 Ante, § 396. 6 See ante, § 1136.

removal on that ground should apply to the circuit court[e] by petitionc supported by proofs in the form of affidavits or otherwise, showing that from perjudice or local influence he will not be able to obtain justice in the State courts. If satisfied with the showing the circuit court should then order removal. The removing party should then file that order in the State court, and take therefrom a transcript of the record and file it in the circuit court.[f]-[g]

Author's section.

[a] History of legislation on subject.

The original law respecting removal on this ground enacted in 18678 and carried forward into R. S. § 639, permitted removal on the petition of a party who was a citizen of another State than that in which the suit was brought, "whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition, he makes and files in said State court an affidavit, stating that he has reasons to believe," etc. The present law of 1887 and 1888, superseded these earlier requirements. It merely provides that a party defendant who is a citizen of another State, may remove "at any time before the trial thereof, when it shall be made to appear to said circuit court that from prejudice or local influence he will not be able to obtain justice in such State court."10 Aside from prescribing the time, and requiring application to be to the circuit rather than to the State court, the procedure is not indicated.11 The statute being silent, the Supreme Court has held that the general rules respecting the transfer of causes from one court to another must obtain, and that the practice should be as above stated, or "if these exact steps are not requisite something equivalent thereto is."12

[b] Time for application.

The clause "at any time before trial," has come to have a settled meaning. It requires the application to be made before the first trial of the cause.14 Before trial means before final hearing.15 Filing of an answer is not a trial;16 nor are preliminary hearings.17 The law permits application at

8 Act Mar. 2, 1867, c. 196, 14 Stat. 558.

9 Fisk v. Henarie, 142 U. S. 467, 35 L. ed. 1080, 12 Sup. Ct. Rep. 207; Minnick v. U. Ins. Co. 40 Fed. 371.

10See ante, § 136.

11The act has frequently been criticized as unskilfully drawn: Fisk v. Henarie, 32 Fed. 420; Lookout M. Ry. v. Houston 32 Fed. 711: Vinal v. Continental C. Co. 34 Fed. 228; Gavin v. Vance, 33 Fed. 85.

12 Pennsylvania Co. v. Bender, 148

U. S. 255, 37 L. ed. 442, 13 Sup. ('t. Rep. 591: Sparkman v. Sup. Council, 57 S. C. 20, 35 S. E. 392; see infra note [f].

14 Fisk v. Henarie, 142 U. S. 459, 35 L. ed. 1080, 12 Sup. Ct. Rep. 207; Farmers' etc. National Bank V. Schuster, 86 Fed. 161, 29 C. C. A. 649.

15 Fisk v. Henarie, 142 U. S. 467. 35 L. ed. 1080, 12 Sup. Ct. Rep. 207. 16 Durkee v. Ill. C. R. R. 81 Fed. 2. 17 Lewis v. Smythe, 2 Woods, 119,

any time before actual trial on the merits whether at the first term at which such a trial was possible or later.18 The cause must be actually on trial in some form in the orderly course of proceeding, all parties acting in good faith, before the right of removal is gone.19 Application is too late after a mistrial.20 It is usually too late after the impanelling of the jury.1 But the time is not jurisdictional and a party may waive the objection that application is too late.2

The earlier laws required petition, but the present act specifies none.5 It is undoubtedly better practice to make the application in the form of petition; it becomes part of the record. The petition, by averments as to citizenship, and value in dispute, should make out a case of Federal cognizance, within the class removable for prejudice and local influence.8 The petition should also state the fact of prejudice or local influence. It it better practice to verify it.10 If verified it may stand as an affidavit.11 It has been held that a petition which failed to show requisite citizenship and an order of removal thereon, did not actually remove a cause where the State court failed to recognize it as sufficient.12

The present law also omits the previous requirement as to an affidavit. It merely requires the fact of prejudice to be made to appear to the circuit court. Affidavit cannot therefore be said to be essential, 16 yet it is certainly proper to file one or more affidavits in support of the petition.17 While the petition may allege the prejudice in the words of the statute, the

supporting affidavit should not, merely reiterate the statutory provision,13 nor allege the petitioner's belief of such fact,19 and it is better to set forth also facts and circumstances. 20 Yet an affidavit in the words of the statute is prima facie sufficient. The fact that affidavit is on information and belief is not a fatal objection when it is positive in form and sets forth facts and circumstances. A removal bond has frequently been tendered the circuit court along with the petition and affidavit, in cases of this character.3 Yet the statute does not require it. And there is not the same need for it as in the class of cases where filing of petition and bond in the State court ipso facto terminates its jurisdiction. Yet the practitioner cannot safely be advised to omit it, in view of the unfortunate vagueness in the law respecting the procedure in these cases.

[e] Application to circuit court and disposal thereof.

The application for removal in this class of cases is made directly to the circuit court instead of to the State court. The statute does not require the application to be made upon notice to the opposite party. Yet many cases have declared it the better practice to give notice.8 If granted ex parte, the opposite party may have opportunity to contest the facts alleged. on motion to remand.9 The statute in effect requires that prejudice or local influence such as to prevent defendant from obtaining justice in the

18Goldworthy v. Ry. 38 Fed. 769. 19 in re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 739, 11 Sup. Ct. Rep. 141 Reeves v. Corning. 51 Fed. 776: Tacoma v. Wright, 84 Fed. 838. 20 Malone v. Richmond, 35 Fed. 625 Southworth v. Reid. 36 Fed. 451; Amy v. Manning, 38 Fed. 536, 868; Detroit v. City Ry. 54 Fed. 1; Schwenk v. Strang, 59 Fed. 209. 8 C. C. A. 92; Paul v. Baltimore, etc. R. R. 44 Fed. 514; Niblock v. Alexander, 44 Fed. 306; Hall v. Chattanooga Wks. 48 Fed. 599; Crotts v. Southern R. R. 90 Fed. 2.

1 Whelan v. N. Y. etc. R. R. 35 Fed. 849, 1 L.R.A. 65; Huskins v. Cincinnati R. R. 37 Fed. 504, 3 L.R.A. 545; Minnick v. Union Ins. Co. 40 Fed. 369; Cooper v. Richmond R. R. 42 Fed. 697, 8 L.R.A. 366; Brodhead v. Shoemaker, 44 Fed. 518, 11 L.R.A.

567.

2 Detroit v. Detroit C. Ry. 54 Fed. 1. But see Curnow v. Phoenix Ins. Co. 44 Fed. 305.

7See Reeves v. Corning. 51 Fed. 777, and Crotts v. So. Ry. 90 Fed. 2. and cases cited; Montgomery Co. v. Cochran, 116 Fed. 985.

$Carson v. Holtzclaw, 39 Fed. 580; Schwenk v. Strang, 59 Fed. 211, 8 C. C. A. 92; Bonner v. Meikle, 77 Fed. 485; Smith v. Crosby, 46 Fed. 820; Herndon v. Southern Ry. 73 Fed. 307; see Campbell v. Collins, 62 Fed. 849; Collins v. Campbell, 62 Fed. 851.

9Smith v. Crosby, 46 Fed. 819: Montgomery Co. v. Cochran, 116 Fod. 985; Ellison v. Ry. Co. 112 Fed. 805, 3 See recitals in removal order in 50 C. C. A. 530; Dennison v. Brown, Crotts v. Southern Ry. 90 Fed. 2; 38 Fed. 535. Otherwise if not ex Parks v. So. Ry. 90 Fed. 4: Anglo- parte; Seaboard A. L. v. North C. R. Am. Co. v. Evans, 34 Neb. 44, 51 N. R. 123 Fed. 629.

State court, be "made to appear" to the circuit court.10 This requires the court to act judicially on the application and not merely ministerially. It requires that the circuit court be satisfied legally, and not merely morally, as to the fact of such local influence or prejudice and the alleged result.11 But if the circuit court deem sufficient a single affidavit declaring the result in general terms, the Supreme Court will not hold that insufficient, as a matter of law, although an allegation upon mere belief would not suffice.12 Much is left to the discretion of the court in individual cases. For the most part the courts insist on a full hearing with affidavits, and perhaps oral testimony,13 and require notice to the adverse party, and permit a showing against the application by counter affidavits or otherwise14 and refuse the removal where there is merely an affidavit alleging the facts in about the terms of the statute,15 or insufficient proof.16 On the other hand removal has been ordered upon an affidavit merely stating the statutory facts unequivocally; 17 although the preponderance of authority is in favor of a more complete showing.18

[f] Order of removal.

It is necessary that the circuit court make a formal order for the removal of the cause and its minute entry declaring that the party is entitled to remove will not suffice.1 The order should then be filed in the State court. 2 As the circuit court's order of removal seems to be an important jurisdictional factor in cases of this character, it seems advisable that it show the jurisdictional diverse citizenship as well as declare the necessary local prejudice; 3 for it must be borne in mind that the record on appeal must affirmatively show that the case is of Federal cognizance. Moreover, as it is the order that is to be filed in the State court, it seems due to the State tribunal that the paper there filed show all the facts to

10 Supra note [a].

11 In re Pennsylvania Co. 137 U. S. 451. 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Fisk v. Henare, 142 U. S. 459, 35 L. ed. 1083, 12 Sup. Ct. Rep. 207; Crotts v. Southern Ry. 90 Fed. 2; see Walcott v. Watson, 46 Fed. 532, where facts were made out.

12 In re Pennsylvana Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141; Hakes v. Burns, 40 Fed. 33; Minnick v. Union Ins. Co. 40 Fed. 371.

13Carson v. Holtzclaw, 39 Fed. 578; Schwenk v. Strang, 59 Fed. 209, 8 C. C. A. 92: Malone v. Richmond R. R. 35 Fed. 628; Dennison v. Brown, 38 Fed. 535; Tacoma v. Wright, 84 Fed. 836.

14Short v. Chicago, etc. R. R. 34 Fed. 225; Ellison v. Louisville R. R. 112 Fed. 805. 50 C. C. A. 530; Maher v. Tower H. Co. 94 Fed. 225.

15 Malone v. Richmond, etc. R. R. 35 Fed. 625; Niblock v. Alexander. 44 Fed. 306; Paul v. Baltimore, etc. R. R. 44 Fed. 514; Amy v. Manning, 38 Fed. 536.

16 Turnbull v. Linthicum Co. 80 Fed. 4; Dennison v. Brown, 38 Fed. 535.

17 Whelan v. Ry. Co. 35 Fed. 849, 1 L.R.A. 65; Short v. Ry. Co. 34 Fed. 227; Brodhead v. Shoemaker, 44 Fed. 518, 11 L.R.A. 567; Franz v. Wahl, 81 Fed. 9.

18 Crotts v. Southern Ry. 90 F 1.

1, 3.

1 Pennsylvania Co. v. Bender, 148 U. S. 255, 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

2 Ibid.

3See Bradley v. Ohio, etc. R. R. 119 N. C. 744, 26 S. E. 169. 4 Ante, § 9.