Where a State court has refused to allow the removal of a cause, on the ground that the defendant has failed to prove diverse citizenship of the parties, and has proceeded with it to a final decision on writ of error to the State court although the case is not within the letter of Rule 32, which provides that, where a writ of error or an appeal is brought under the Act of March 3, 1875, it may be advanced on motion and heard under the rules applicable to motions to dismiss.8 The fact that the State court refused to dismiss the complaint as against a resident defendant and that there was a verdict against him shows that an assignment of error because of a refusal to permit the case to be removed is frivolous. A defendant who makes an application for a removal cannot assign, for error, the refusal of the State court to permit a removal of the application of other defendants.10 Where, in a suit pending before it, a State court dissolved an injunction against proceedings to sell mortgaged premises under a foreclosure already had, and after such dissolution, the effect of which was to leave in force a final decree of sale, an alien defendant petitioned for removal into the United States Court under the Act of July 27, 1866, and the State court refused to grant that petition, the defendant not excepting, and the case was not afterwards taken to the State Supreme Court, upon an appeal from such decree of dissolution; held that the Supreme Court of the United States had no jurisdiction to review such decree. U. S. R. S., § 709.11

§ 558. Review of order denying remand. An order denying a motion to remand can be reviewed by the Supreme Court of the United States; or, it seems by the Circuit Court of Appeals; 2 upon writ of error to, or appeal from, the final judg

v. Frank, 23 Wall. 416, 23 L. ed. 81.

§ 558. 1 Edrington v. Jefferson, 111 U. S. 770, 4 Sup. Ct. 683, 28 L. ed. 594; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. ed. 804; Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. 264.

2 Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81, 19 U. S. App. 646; Wabash R. Co. v. Barbour, 73 Fed.

ment or decree, as the case may be. It cannot, however, be reviewed by an immediate appeal or writ of error, since it is not a final order.3

If a review by the Supreme Court of the United States is desired, a certificate of jurisdiction should be obtained at the time of the entry of final judgment or decree.

Unless the transcript or record shows the jurisdiction, either by the petition for the removal or by statements in the pleadings or evidence, the Appellate Court will reverse the judgment and order a remand. It has been said that the petition for removal is an essential part of the record to enable the court to determine its own jurisdiction, without which it will not proceed to a final adjudication."

In case of an erroneous removal of a criminal prosecution, and a refusal to remand the same, the State may obtain a writ of mandamus to compel the remand of the prosecution and the

513, 19 C. C. A. 546, 43 U. S. App. 102.

3 Bender v. Pennsylvania Co., 148 U. S. 502, 13 Sup. Ct. 640, 37 L. ed. 537; Patten v. Cilley, 50 Fed. 337, 1 C. C. A. 522, 5 U. S. App. 9; Harding v. Corn Products Mfg. Co., C. C. A., 198 Fed. 628, where the order denied the motion that awarded costs and directed execution to issue therefor against the complain

ant.

4 Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 42 L. ed. 673, 18, Sup. Ct. 264; infra, § 688.

5 Hancock v. Holbrook, 112 U. S. 299, 5 Sup. Ct. 115, 28 L. ed. 714; reversing decree 9 Fed. 353 (4 Woods 52); Cameron v. Hodges, 127 U. S. 322, 8 Sup. Ct. 1154, 32 L. ed. 132; Hegler v. Faulkner, 127 U. S. 482, 8 Sup. Ct. 1203, 32 L. ed. 210; Crehore v. Ohio & M. Ry. Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. ed. 144; Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9, 33 L. ed.

249; Southwestern Telegraph & Telephone Co. v. Robinson, C. C. A., 48 Fed. 769, 1 C. C. A. 91, 2 U. S. App. 148; Juillard v. Barr, C. C. A., 177 Fed. 921. See Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. 625, 27 L. ed. 354. Where, upon a foreclosure suit, the appeal was from an order confirming the sale, but not from the decree directing the sale, and this decree did not affirmatively disclose a want of jurisdiction; the Supreme Court of the United States did not examine the record prior to the decree of sale to see whether the case was properly removed. Turner v. Farmers' Loan & Trust Co., 106 U. S. 552, 1 Sup. Ct. 519, 27 L. ed. 273. When the right to a remand depends upon the evidence it will not be reviewed upon appeal, unless such evidence is contained in the record. Wirgman v. Persons, C. C. A., 126 Fed. 449.

6 Larned v. Jenkins, C. C. A., 109 Fed. 100, 48 C. C. A. 252.

restoration of the custody of the accused, and may also appeal to the Supreme Court from an order of the Federal court granting the writ of habeas corpus. In a case not within the original jurisdiction of the Supreme Court, it is very doubtful whether an order denying a motion to remand a case may be reviewed by the writ of mandamus or prohibition.9

The District Court may review its own order denying a motion to remand, under the same circumstances that it can review any other order granted by it.10 Where there is no fraud or collusion, a District Court of the United States cannot declare void, in a collateral action, a judgment of a District Court or of a Circuit Court of Appeals, in a case removed from a State court; although the record fails to show facts necessary to warrant the removal.11 Where the right of removal depended upon the existence of a separate controversy between parties whose difference of citizenship was not disputed, it was held that a decree dismissing a bill against one defendant, which was entered after a motion to remand had been improperly denied, could not be set aside at a subsequent term, although a decree in favor of the remaining defendant had been reversed because the remand should have been granted.12 Where, after an attempted removal, the State court retained jurisdiction, tried the case and entered a judgment in favor of plaintiff, which was affirmed by the Supreme Court of the United States; it was held that a previous judgment of the Federal court, in favor of the defendant, was not void, but that defendant was estopped from using the same as the basis of a suit to enjoin the enforcement of the judgment of the State court.18 Where the petition to remove was defective, it was held that the entry of a dis

7 Virginia v. Rives, 100 U. S. 313, 25 L. ed. 667; Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386; Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 33.

8 Kentucky v. Powers, 201 U. S. 1, 50 L. ed. 633.

9 See ex parte Harding, 219 U. S. 363, 55 L. ed. 252; Re Pollitz, 206 U. S. 323, 51 L. ed. 1081; Ex parte Roe, 234 U. S. 70; supra, § 457c. Fed. Prac. Vol. III-57

10 Supra, §§ 443, 444.

11 Dexter, Horton & Co. v. Sayward, 84 Fed. 296; Ayres v. Wiswall, 112 U. S. 187, 193, 28 L. ed. 693, 695.

12 Re Metropolitan Tr. Co., 218 U. S. 312, 54 L. ed. 1051.

13 Illinois Cent. R. Co. v. Sheegog, 177 Fed. 756; affirmed 217 U. S. 599, 54 L. ed. 897.

continuance by the plaintiff in the Federal court, after his motion to remand had been overruled, did not dismiss the action which remained pending in the State court.14

§ 559. Proceedings after remand. After the remand the Federal court can take no further proceedings in the case,1 except perhaps to set aside such order at the same term.2 It cannot confirm a sale previously made.3 The State court then alone has the power to determine what shall be done with the pleadings filed and testimony taken during the pendency of the suit in the Federal court.5 Where plaintiff procures the remand of a cause to the State court on a showing by affidavit that the amount of his claim is less than $3,000, he is bound by this limitation on the amount of his claim in the future proceedings therein.6

14 Nichols v. Chesapeake & O. Ry. Co., C. C. A., 195 Fed. 913.

$ 559. 1 Colburn v. Hill, C. C.

A., 103 Fed. 340.

2 See supra, § 481a.

3 Colburn v. Hill, C. C. A., 103 Fed. 340.

4 Ayres v. Wiswall, 112 U. S. 187, 193, 28 L. ed. 693, 695.

5 Ayres v. Wiswall, 112 U. S. 187, 193, 28 L. ed. 693, 695; Broadway Ins. Co. v. Chicago & G. W. Ry. Co., 101 Fed. 507, 510.

6 Mull v. Parrott Bros. Co., 218 Fed. 713.

CHAPTER XXXIII.

ADMIRALTY AND SEIZURES.

§ 560. Admiralty jurisdiction. In general. The Federal Constitution ordains that the judicial power shall extend "to all Cases of Admiralty and maritime Jurisdiction." The Judicial Code provides that the District Courts of the United States shall have jurisdiction "of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it; of all seizures on land or waters not within admiralty or maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize. "2

By the Admiralty Rules, "In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules." 3

The Federal courts, when sitting in admiralty, enforce the general law of admiralty which was recognized when the Constitution was adopted, in so far as this has not been modified by Congress, and with certain exceptions required by the extensive inland navigation in the United States. This jurisdiction cannot be restricted by State legislation, although new liens or causes of action created by State statutes were formerly enforced by courts of admiralty when they applied to maritime contracts,6 or transactions 7 and the local rules and regulations concerning the use of harbors are usually followed.

Such of the restrictions

6 McKay v. Gulf Refining Co., C. C. A., 176 Fed. 93.

7 Sherlock v. Alling, 93 U. S. 99, 104, 23 L. ed: 819; City of Norwalk, 55 Fed. 98, 103, 105, 106; infra, §§ 560a, 560b.

3099

8 The Barge No. 4, 248 Fed. 823.