State court against State court proceedings continues after removal notwithstanding R. S. § 720.8 § 1154. Duty to remand at any time if cause not properly re movable. If, in any suit removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been . removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case removable under this act, the said circuit court shall proceed no farther therein, but shall . . . remand . . [the suit] to the court from which it was removed, . and shall make such order as to costs as shall be just.[a]-[1] § 5 of act Mar. 3, 1875, c. 137, 18 Stat. 472, as amended by act of Mar. 3, 1887, c. 373, § 6, 24 Stat. 555, corrected Aug. 13, 1888, c. 866, § 6, 25 Stat. 436, U. S. Comp. Stat. 1901, p. 511. [a] Duty of court to remand only for jurisdictional defects. The amendment of 1887 consisted in repealing a clause making the remanding order appealable.10 This section also provides for dismissal of causes at any time if improperly instituted in the circuit court,11 the scope and effect of that provision having been considered elsewhere.12 The foregoing provision deals with remand for defects jurisdictional in character; and directs remand in such cases "at any time." But it does not apply to defects or irregularities in the mode of removing the cause which are not jurisdictional.13 Those defects may be waived. 14 Many defects in the petition 15 or bond 16 may be waived or corrected by amendment in the circuit court. So, objection that removal was not taken in due season may be waived;17 and failure to file the record in due season is not a jurisdictional defect.18 Hence while the court is required to notice jurisdictional defects without motion for remand being made, 19 and to remand 8 Hunt v. Fisher. 29 Fed. 805: see Lawrence v. Morgan Co. 121 U. S. 637, 30 L. ed. 1019, 7 Sup. Ct. Rep. 1013. See in addition to above cases: Eureka Ry. v. Cal. Ry. 103 Fed. 897. 10 See post, § 1156. 11See ante, § 818, where the sec tion is given in full. 12 Ante, § 818. 14 Dennis v Alachua Co. 3 Woods, 683, Fed. Cas. No. 3.791; Brice V. Somers, 8 Chic. L. N. 290, 1 Flip. 574, Fed. Cas. No. 1,856. 15 Ante, § 1136 [h]. 18 Ante. 1139 [a]. 19 Beede V. Cheeney, 5 Fed. 388; 130sgood v. Chicago, etc. R. R. 6 Indiana v. Tolleston Club, 53 Fed. Biss. 330, Fed. Cas. No. 10,604. 18; in re Foley, 76 Fed. 390. therefor "at any time,"20 less vital irregularities or defects must be made the basis of motion to remand, and seasonably urged, or else they are waived.1 [b] Motion to remand. There is no general statute or rule governing the practice on motion to remand; although there are local rules of court in some districts. Indeed under this section the mode of raising the question of want of jurisdiction is immaterial, because the court's duty is prescribed by the statute. Motion to remand is equivalent to a plea to the jurisdiction.5 It should be in the form of petition in writing, setting for the grounds upon which remand is asked, e. g. that the petition was not filed in time.7 The motion should be upon notice; 8 and it should be to remand and not to dismiss, nor for dismissal and nonsuit.10 The opposite party may, traverse or otherwise plead to the petition at least where motion is based upon nonjurisdictional defects.11 Motion to remand an indictment found in a State court may be made prior to the first day of the Federal term to which the record is returnable upon the production by the State, of copies of the papers. 12 [c] Hearing and determination of motion. When based upon jurisdictional defects, the motion to remand is determined on the face of the record;13 and the Federal jurisdiction must affirmatively appear therefrom; 14 and cannot be supported by a showing subsequently made,15 or by ex parte affidavits correcting alleged error 20 Ayres v. Wiswell, 112 U. S. 190, 28 L. ed. 693, 5 Sup. Ct. Rep. 90. 1 Dennistown v. Draper, 5 Blatchf. 336. Fed. Cas. No. 3,804; Murray v. Patrie, 5 Blatchf. 343. Fed. Cas. No. 9.967: Wood v. Matthews, 2 Blatchf. 370. Fed. Cas. No. 17,955; Anderson v. Appleton, 32 Fed. 857; Cameron v. Hodges, 127 U. S. 326, 32 L. ed. 132, 8 Sup. Ct. Rep. 1154; Turner v. F. L. & T. Co. 106 U. S. 555, 27 L. ed. 273. 1 Sup. Ct. Rep. 519. specified in the motion: See Tracy v 9 Northern P. T. Co. v. Lowenberg, 18 Fed. 341; Cates v. Allen, 149 Ü. S. 460, 37 L. ed. 804, 13 Sup. Ct. Rep. 883. 10 Dawson v. Kinney, 144 Fed. 710. 11Lucker v. Phoenix Asso. Co. 66 4 Briggs v. Traders Co. 145 Fed. Fed. 161. 254. 5 Mansfield, etc. Ry. v. Swan, 111 U. S. 384, 28 L. ed. 462, 4 Sup. Ct. Rep. 510. 6 Lucker v. Phoenix Asso. Co. 66 Fed, 161: see Jones in DeLoy v. Trav. Ins. Co. 59 Fed. 320; Henderson v. Cabell, 43 Fed. 257; Chiatovich v. Hanchett, 78 Fed. 193. 7 Martin v. Baltimore, etc. R. R. 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533. But jurisdictional' defects may be noticed although not 12 tate v. Corrigan, 139 Fed. 758, see ante, § 1139 [b]. 13 Goodnow v. Litchfield, 4 MeCrary, 217, 47 Fed. 753; Clarkhuff v. Wisconsin, etc. R. R. 26 Fed. 466; Mahin v. Pfeiffer, 27 Fed. 893; Smith v. Chicago etc. Ry. Co. 30 Fed. 722; McLane v. Leicht, 27 Fed. 887. 14 Long v. Buford, 24 Fed. 248; Smith v. W. U. T. Co. 79 Fed. 132. 15Grand T. Ry. v. Twitchell, 59 Fed. 730, 8 C. C. A. 237. therein.16 If the party desires to controvert the truth of the record he should file a plea to the jurisdiction.17 Sometimes motion to remand is heard upon a stipulation as to the facts.18 If the cause has been divided in the Federal Court into separate proceedings in the law and equity side, the granting of a motion to remand in the proceeding at law, would involve a similar ruling in equity.19 It has often been said to be proper to remand if the jurisdiction is doubtful;1 in view of the complications and hardships possible from wrongful retention of jurisdiction. But since 1887 the remanding order is no longer appealable, so that an aggrieved party would have no remedy and this affects the cogency of the argument favoring remand in case of doubt.5 Where a question raised by motion to remand has not been decided by the Supreme Court, the decision of a circuit justice will be followed by the district and circuit judges within a circuit; 6 decisions by a circuit judge will be accepted by district judges of the circuit; and generally one district judge of the circuit will follow the ruling of another.8 [d] Order granting or denying motion and reconsideration thereof. An order denying a motion to remand10 may be reconsidered at any time before final judgment.11 It has been said that an order of remand 12 continues to be within the control of the circuit court, and may therefore be vacated, any time during the term,13 but not afterwards.14 In several cases 16Smith v. W. U. T. Co. 79 Fed. 7,662; Garner v. Second Nat. Bank, 66 Fed. 370. 132. 17Smith v. Chicago etc. Ry. Co. 30 Fed. 722. This is still proper though not indispensable since the act of 1875. See ante, § 818 [c]. 18See Pacific R. R. v. Missouri P. R. R. 5 McCrary, 374, 23 Fed. 565; Sherwood v. Newport News, 55 Fed. 1. 19 Utah, etc. Co. v. DeLamar, 145 Fed. 505. 1 Fitzgerald v. Ry. 45 Fed. 812; State v. Bradley, 26 Fed. 292; Concord C. Co. v. Haley, 76 Fed. 883; Nash v. McNamara, 145 Fed. 541; Groel v. United E. Co. 132 Fed. 252. 2 See Graves v. Corbin, 132 U. S. 571, 33 L. ed. 462, 10 Sup. Ct. Rep. 196. 3 Post, 1156. 4 See Johnson v. F. C. Austin Mfg. Co. 76 Fed. 616; Boatmen's Bank v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288. 5 Boatmen's Bank v. Fritzlen, 135 Fed. 650, 68 C. C. A. 288, see ante, § 818 [b]. 7See Commercial Bank v. Corbett, 5 Sawy. 174, Fed. Cas. No. 3,058; Van Brunt v. Corbin, 14 Blatchf. 496, Fed. Cas. No. 16,832: McLane v. Leicht, 27 Fed. 888; Wilson v. Winchester, 82 Fed. 16. 8 See Garner v. Second Nat. Bank, 66 Fed. 369; Monroe v. Williamson, 81 Fed. 977; Con. T. Co. v. Guar antors Co. 78 Fed. 657. But see Frisbie v. R. R. Co. 59 Fed. 369; Kansas, etc. Ry. v. Interstate L. Co. 37 Fed. 3. 10 See form of order in Meissner v. Buek. 28 Fed. 164. 11 Missouri P. Ry. v. Fitzgerald, 160 U. S. 580, 40 L. ed. 536, 16 Sup. Ct. Rep. 389; see illustrations: Greene v. Klinger, 10 Fed. 689; Wilkinson v. Ry. Co. 23 Fed. 561. 12See form of order in Akers V. Akers, 117 U. S. 198, 29 L. ed. 888, 6 Sup. Ct. Rep. 669; Ayres v. Wiswall, 112 U. S. 189, 28 L. ed. 694, 5 Sup. Ct. Rep. 90. 6 See Blackwell v. Braun. 1 Fed. 13 Birdseye v. Shaeffer, 37 Fed. 822. 352, 4 Hughes 203: Kellogg v. 14Galesburg v. Water Co. 27 Fed. Hughes, 3 Dill. 359, Fed. Cas. No. 322. rehearing and overruling re motion to rehear a remanding order has been considered, although the report does not show whether the remanding order had at the time been executed by being filed and entered in the State court.15 It is at least doubtful whether the circuit court has power to reconsider the order of remand after it has been executed; 16 especially since the act of 1877 making the remanding order nonappealable and directing that the remand "be immediately carried into execution;"17 and the complications that might result from an affirmance of the power do not commend its assertion.18 [e] Effect of remand. An order of remand restores the jurisdiction of the State court;1 and the right to the custody of a defendant who was taken from the sheriff on habeas corpus cum causa.2 The State court is not bound to recognize rulings made in the circuit court.3 It is entirely a question for the State court to determine what shall be done with pleadings, testimony, etc.. taken in the Federal court. The removing party is not entitled to file a second petition after remand,5 unless amendment of the complaint is then made which first creates a removable case. The first removal petition is functus officio after remand.7 Costs are awarded against the party improperly removing the case; 10 and if on appeal the Supreme Court holds the case should re manded it has jurisdiction to decree costs against the removing party.11 manding order. Hamlet v. Fletcher, 24 Fed. 305, refusing to rehear al though not from want of power. 15 McLean v. St. Paul R. R. 17 Blatchf. 367. Fed. Cas. No. 8,893. 16 Freeman v. Butler, 39 Fed. 2. 17See post, § 1156. See also En re Pennsylvania Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141, construing those words. 18 While it is the rule that courts will exercise control over their orders and decrees during the term of their rendition this is not because they have jurisdiction to do so at the term, and none afterwards. The rule is a judge-maue rule of manifest expediency but not one of jurisdictional power at all. Such a rule would have no considerations of expediency to recommend it in the case of a removal order; and it is certainly doubt ful whether the circuit court has any jurisdiction in the cause after the execution of the removal order. Ins. Co. 50 Ala. 464; Germania Ins. 2 Virginia v. Paul, 148 U. S. 123, 37 L. ed. 386, 13 Sup. Ct. Rep. 536. 3 Levinski v. Middlesex B. Co. 92 Fed. 449, 34 C. C. A. 452. 4 Ayres v. Wiswall, 112 U. S. 190. 28 L. ed. 694, 5 Sup. Ct. Rep. 90: Birdseye v. Schaeffer, 37 Fed. 823. 5St. Paul, Etc. R. R. v. McLean, 108 U. S. 217, 27 L. ed. 705, 2 Sup. Ct. Rep. 498; Johnston v. Donovan, 30 Fed. 395; Smith v. Trav. Ins. Co. 73 Fed. 513; Pope v. Cheney, 22 Fed. 177. 178; Nichols v. Stevens, 123 Mo. 120, 25 S. W. 584, 45 Am. St. Rep. 526. 6 See Jones v. Mosher, 107 Fed. 561, 46 C. C. A. 471. 7 Ibid. 10 Walker v. Collins, 167 U. S. 59. 42 L. ed. 76, 17 Sup. Ct. Rep. 738; see ante, $ 818 [j]. 11 Mansfield, etc. Ry. v. Swan, 111 U. S. 386, 28 L. ed. 462, 4 Sup. Ct. 1St. Paul, etc. R. R. v. McLean, Rep. 510; Graves v. Corbin, 132 U. 108 U. S. 217, 27 L. ed. 705, 2 Sup. S. 590. 33 L. ed. 462, 10 Sup. Ct. Rep. Ct. Rep. 498; see Thacher v. McWil- 196; Kellam v. Keith, 144 U. S. 570, liams, 47 Ga. 306; Ex parte State 36 L. ed. 544, 12 Sup. Ct. Rep. 922. § 1155. Duty to remand as to some defendants, after removal for local prejudice. If it appear that said suit [i. e. one removed by a defendant for prejudice or local influence]13 can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said circuit court may direct the suit to be remanded, so far as relates to such other defendants, to the State court, to be proceeded with therein. At any time before the trial of any suit which is now pending in any circuit court, or may hereafter be entered therein, and which has been removed to said court from a State court on the affidavit of any party plaintiff that he had reason to believe and did believe that, from prejudice or local influence, he was unable to obtain justice in said State court, the circuit court, shall, on application of the other party, examine into the truth of said affidavit and the grounds thereof, and, unless it shall appear to the satisfaction of said court that said party will not be able to obtain justice in such State court, it shall cause the same to be remanded thereto. Part of 2 act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended by act Mar. 3, 1887, c. 373, § 1, 24 Stat. 552, corrected Aug. 13, 1888, c. 866, § 1, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 509. The foregoing provision was not in the section as originally adopted in 1875, but was added by amendment in 1887. The latter part of it, respecting removal by plaintiff, was made expressly applicable to pending cases and as so applied it was valid.14 However, as the right of removal by plaintiff is withdrawn by the act of 1887, the reference to remand of cases that "may hereafter be entered" in the circuit court, means cases thereafter so entered under the act of 1875.15 The latter part of the above provision was therefore merely temporary in character and has long ceased to be operative.16 The first part, directing remand of part of a removed case in certain contingencies, is in full force. The antecedent portions of the second section of the act of 1875 as amended, are contained in an earlier chapter.17 The final clause is contained in the next following section. 18 § 1156. Remanding order not appealable. Whenever any cause shall be removed from any State court into any circuit court of the United States, and the circuit court shall 13See ante, § 136. 14 Birdseye v. Shaeffer, 37 Fed. 821. 15 Campbell v. Collins, 62 Fed. 849. 16 See Fisk v. Henarie, 32 Fed. 417, 13 Sawy. 38. 17 Ante, $$ 133-136. 18 Post, 1156. |