was properly served with process within the State, was not served within the Federal district cannot be sustained.27 The practice after the removal must be substantially in accordance with the modes of procedure followed in the Federal courts in original cases.28 If the action is at common law, the practice in the State courts will be followed as near as may be, except in cases regulated by a Federal statute.29 If in equity, the practice will be in accordance with the Federal statutes and equity rules.30 A removal is analogous to a change of venue; not to an appeal. Since the statute says, that the copy of the record in the State court "being entered as aforesaid in said District Court of the United States, the case shall then proceed in the same manner as if it had been originally commenced in the said District Court," 32 it is doubtful whether any proceeding can be taken in the Federal court until the transcript has been filed.33 27 Friezen v. Allemania Fire Ins. Co., 30 Fed. 349. 28 Toucey v. Bowen, Fed. Cas. No. 14,107 (1 Biss. 81); Henning v. Western Union Tel. Co., 40 Fed. 658. 29 U. S. R. S., § 914; supra, § 453. 30 Thomson v. Wooster, 114 U. S. 104, 29 L. ed. 105; Lewis v. Shainwald, 7 Sawyer 403; Boatmen's Sav. Bank v. Wagenspack, 12 Fed. 66 (4 Woods 130); Taylor v. Life Ass'n of America, 13 Fed. 493. 31 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786, 787; per Mr. Justice Brewer. 32 25 St. at L. 433; § 3. 33 Pelzer Manuf'g Co. v. St. Paul Fire & Marine Ins. Co., 40 Fed. 185, 186. But see Champlain Const. Co. v. O'Brien, 104 Fed. 930. Where a motion was made before the transcript was filed, it was sustained after such filing was duly made. Frank v. Leopold & Feron Co., 169 Fed. 922. See Mahoney M. Co. v. Bennett, 5 Sawyer 141; Commercial & S. Bank v. Corbett, 5 Sawyer 172; Hartford & C. W. R. Co. v.. Montague, 94 Fed. 227. Contra, K. C. & T. R. Co. v. Interstate Lumber Co., 36 Fed., 9; Hamilton v. Fowler, 83 Fed. 321. See also Anderson v. Appleton, 32 Fed. 855; Mills v. Newell, 41 Fed. 529; Thompson v. Chicago, St. P. & K. C. Ry. Co., 60 Fed. 773; Coeur d'Alene Ry. & Nav. Co. v. Spalding, C. C. A., 93 Fed. 280; Delbanco v. Singletary, 40 Fed. 177; Anderson v. Appleton, 32 Fed. 855; Delbanco v. Singletary, 40 Fed. 177; Mills v. Newell, 41 Fed. 529; Thompson v. Chicago, St. P. & K. C. Ry. Co., 60 Fed. 773; Ryder v. Bateman, 93 Fed. 16. But see Railroad Co. v. Koontz, 104 U. S. 5, 26 L. ed. 643; Kansas City & T. R. Co. v. Interstate Lumber Co., 36 Fed. 9; Mahoney M. Co. v. Bennett, 5 Sawyer 141; C. & S. Bank v. Corbett, 5 Sawyer 172; Kansas City & T. Ry. Co. v. Interstate L. Co., 36 Fed. 9; North American Transportation & If the plaintiff refuses to plead in the Federal court when a pleading is required, or to comply with the rules concerning bringing the case on for trial; his case may be dismissed.35 When the plaintiff proceeds after the removal upon the wrong code of the court, the proper practice is to sustain a demurrer to his pleading, without prejudice to his right to replead on the other side.36 Where the plaintiff has erroneously elected to proceed in the cause at common law, or in equity, and his only remedy was on the other side of the court, the Circuit Court of Appeals, when reversing for that reason a judgment in his favor, may give him leave to apply below for permission Trading Co. v. Howells, 121 Fed. 694, 58 C. C. A. 442. An unreported case by Judge Dillon in the Eighth Circuit, cited in Kansas City & T. Ry. Co. v. Interstate L. Co., 36 Fed. 9, 11, holds that depositions de bene esse may be taken under the statutes of the United States, immediately after the removal and before the transcript is filed. Matter of Barnesville & M. R. Co., 2 McCrary 216; Kansas City & T. Ry. Co. v. Interstate Lumber Co., 36 Fed. 9; Heidecker v. Red. Star L. S. S. Co., 32 Fed. 706; Pelzer Manuf'g Co. v. St. Paul Fire & Marine Ins. Co., 40 Fed. 185, 186; Bryce v. Southern Ry. Co., 129 Fed. 966. Contra, Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn, 60 Fed. 929; Phenix Ins. Co. v. Charleston B. Co., 65 Fed. 628; Torrent v. S. K. Martin L. Co., 37 Fed. 727; Dunn v. Duncan, Fed. Cas. No. 4,175, 2 W. N. Cas. (Pa.) 480, 1 Law & Eq. Rep. 402; Amsden v. Norwich U. F. Ins. Soc., 44 Fed. 515; Webster v. Crothers, 1 Dillon 301; Kansas City & T. Ry. Co. v. Interstate Lumber Co., 36 Fed. 9; Judge v. Anderson, 19 Fed. 885; Knoblock v. Southern Ry. Co., 112 Fed. 926. 34 Abranches v. Schell, Fed. Cas. No. 21 (4 Blatchf. 256). 35 McMullen v. Northern Pac. R. Co., 57 Fed. 16. In Dawson v. Kinney, 144 Fed. 710, it was held that, where plaintiff refused to proceed, the Federal court could only dismiss the proceedings and remand the cause, and had no power to enter a judgment of a nonsuit and dismissal with costs to the defendant. 36 Perkins v. Hendryx, 23 Fed. 418, 419; Pilla v. German School Ass'n, 23 Fed. 700; appeal dismissed, 131 U. S. 443, 9 Sup. Ct. 801, 33 L. ed. 216; Bacon v. Felt, 38 Fed. 870. But where, after the final hearing of a suit prosecuted in equity after the removal, the bill was dismissed "without prejudice to any other appropriate remedy for relief, which complainant might be advised to pursue,' "the decree was affirmed. Union Stock Yards Co. v. Nashville Packing Co., 140 Fed. 701, 702, 706, 72 C. C. A. 195. It has been held: that a suit to enforce a mechanic's lien must, after removal, be tried upon the equity side of the court, although the State practice permitted it to be maintained as an action at law; to amend and to proceed in equity,87 or at common law,88 as the case may be; provided, at least, that the objection was not taken below; but when such objection was duly taken in the court of first instance and there sustained, and the plaintiff refused to amend, a judgment against him was affirmed.39 A State statute authorizing the defendant to an action at law to obtain affirmative equitable relief will not be followed after the removal,40 If such statutory relief is beyond the power/of the Federal court, the case will be remanded.41 No stipulation of the parties can make a case cognizable on either side of the court, to which it does not properly belong.42 A trial at common law without objection is a waiver of any right to have the case proceed on the equity side of the court:48 It has been held that a failure, within the time required by the State statute, to demand a jury trial before the removal, which delay by the State law amounts to a waiver of the right Hooven, Owens & Rentschler Co. v. Featherstone, 99 Fed. 180; that a suit upon a contract, to pay only royalties for the use of a patent, must, when brought against the assignee of the patent, who has assumed the contract, be continued upon the equity side; Goodyear Shoe Machinery Co. v. Dancel, C. C. A., 119 Fed. 692 (in which the author was counsel); but that an action by a payee of notes upon a covenant of a vendee of the land, for which they were given in payment made with the vendor to pay the same, must be continued at common law; North Alabama Development Co. v. Orman, 55 Fed. 18, 5 C. C. A. 22; affirming judgment, Orman v. North Alabama Development Co., 53 Fed. 469; and that a suit upon a chose in action by an assignee must, after removal, be continued upon the equity side; Benedict v. Williams, 10 Fed. 208, 20 Blatchf. 276. But see Thompson v. Central Ohio R. R. Co., 6 Wall. 134, 18 L. ed. 765. 37 Dancel v. Goodyear Shoe Machinery Co., 137 Fed. 157; C. C. A., 119 Fed. 692; certiorari denied, 202 U. S. 619, 50 L. ed. 1174. 38 Bacon v. Felt, 38 Fed. 870; McConnell v. Provident Life Assur. Soc., 69 Fed. 113, 16 C. C. A. 172 (where the lower court was directed to permit the plaintiff thus to reframe his pleading). 39 Fletcher v. Burt, C. C. A., 126 Fed. 619. 40 Sturges v. Portis Mining Co., 206 Fed. 534. 41 City of Knoxville v. Southern Paving Const. Co., 220 Fed. 236; Williams v. Provident Life & Trust Co., C. C. A., 242 Fed. 417. 42 North Alabama Development Co. v. Orman, 55 Fed. 18, 5 C. C. A. 22; affirming judgment, Orman v. North Alabama Development Co., 53 Fed. 469. 43 Southern Cotton Oil Co. v. Shelton, 220 Fed. 247. to trial by jury, does not affect the right to trial by jury in the Federal court.44 Where a receiver, appointed by a Federal court, removed a suit brought against him in the State court; it was held that the plaintiff was entitled to a trial by jury, if he would have been so entitled in the State court.4 45 After the removal of a criminal prosecution against an officer of the United States, the State prosecuting officer is the proper person to try the case for the plaintiff and the District Attorney of the United States usually appears for the defendant.46 The time in which an execution can issue, on a judgment in a case brought in a State court and removed to a Federal court, depends on the laws of the United States and not on the State laws.47 Where a claim for damages was blended with one for equitable relief, and the latter was not removable because ancillary to a previous proceeding in the State court; it was held that, on a motion to remand, the whole case must be remanded, and that the Federal court could not upon such motion order a repleader and compel the claim for damages to be separately stated, so that it might retain jurisdiction thereof on its common-law side.48 Leave to discontinue may be denied or conditioned by a stipulation that the plaintiff will not bring another action for the same cause of action against the defendant in any court.49 The decisions of the State court on a demurrer, or otherwise, made in the case before its removal, will ordinarily be followed by the Federal court; 50 not, however, upon the validity of the 44 Montgomery County v. Cochran, 116 Fed. 985, 1002. 45 Bryant v. Thompson, 27 Fed. 881; Vany v. Receiver of Toledo, St. L. & K. C. Ry. Co., 67 Fed. 379. 46 Delaware v. Emerson, 8 Fed. 411, 47 Nims v. Spurr, 138 Mass. 209. 48 Ladd v. West, 55 Fed. 353. 49 Palmer v. Delaware, L. & W. R. Co., 222 Fed. 461. 50 Duncan v. Gegan, 101 U. S. 810, 25 L. ed. 875; Milligan v. Lalance service of process upon a nonresident defendant.51 Where a suit had been removed because of a separable controversy; it was held that the Federal court had no jurisdiction to set aside a previous judgment of the State court against a defendant who was a citizen of the same State as the plaintiff.52 Whether after removal a plea of lis pendens, based upon a former suit in the Federal court, should be sustained, was left undecided.53 In an action at common law, a defendant is not obliged to reserve or refile any notice, which has been, before the removal, duly served or filed by him, as the case may be, in the State court.54 After removal, the Federal court may consolidate the removed cause with one originally brought within its jurisdiction.55 The consolidation of a case does not prevent its remand.56 The removal of a suit in which he is attorney of record and has been retained' upon a contingent fee does not authorize a man who has been disbarred by the Federal court from continuing to act therein.57 § 555a. Pleading to a petition of removal. All pleadings to a petition of removal or denials of allegations therein contained must be made in the Federal court.1 In the Northern District of Iowa, it is the practice to treat, as a plea to the jurisdiction, denials of allegations of the defendant's petition which are made in a motion to remand; but, 124 Fed. 860; Dodd v. Louisville Bridge Co., 130 Fed. 186. See Wilson v. Smith, 117 Fed. 707, 709. But see Spring Co. v. Knowlton, 103 U. S. 49, 26 L. ed. 347. 51 Remington v. Central Pac. R. R. Co., 198 U. S. 95, 49 L. ed. 959; Allmark v. Platte S. S. Co., 76 Fed. 615. Contra, Bragdon v. Perkins, Campbell Co., 82 Fed. 338. 52 Youtsey v. Hoffman, 108 Fed. 699, 701. 53 Ahlhauser v. Butler, 50 Fed. 705. 54 Waldman v. Pennsylvania R. Co., 13 Fed. 801; Johnson v. Bridgeport Deoxidized Bronze & Metal Co., 125 Fed. 631; Waldman v. Pennsyl 55 Wabash, St. L. & P. Ry. Co. v. Central Trust Co., 23 Fed. 513; supra, § 472. 56 Colburn v. Hill, C. C. A., 101 Fed. 500. 57 Leonard v. Toledo, St. L. & W. R. Co., 232 Fed. 281. § 555a. 1 See $554, supra. 2 McGuire v. Great Northern Ry. Co., 153 Fed. 434, 435; Harrington v. Great Northern Ry. Co., 169 Fed. 714, 716; Evans v. Sioux City Service Co., 206 Fed. 841. See Jones v. Casey-Hedges Co., 213 Fed. 43, E. D. Tenn. S. D. |