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hence, where a party dies, the substitution of an administrator having the requisite citizenship does not make the case removable.98 The mere filing of a petition for removal is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to remove the suit.99

§ 1031. Petition-When to be made.-A party must move that the cause be transferred to the United States courts within the time prescribed, or his right to do so will be lost.100 The time within which removal must be applied for, however, is not jurisdictional, but modal and formal; and if the conduct of a party is merely a device to prevent a removal, the objection as to time cannot be raised by him.100 Where, from the facts in the record, great doubt appears as to whether the petition for removal was too late, the court will not so presume.1 The removal acts contemplate the filing of the petition before the trial or final hearing of the suit.102

101

In those states where statutes provide for terms of court, the petition must be filed at or before the term at which the suit could be first tried.103 So where the original defendants have answered without counterclaim or suit, if the issues are complete and the cause is ready for trial, a petition for removal must be filed at that term.10 104 A case is "triable" within the removal acts after the answers are all in and the term cannot be extended by order of the court or agreement of the parties.105

Where a statute allows a defeated party a second trial as of right, the first trial is not a "final hearing or trial." 106 The report

98 Grand Trunk Ry. Co. v. Twitchell, 59 Fed. 727, 8 C. C. A. 237. See Day v. Oatis, 85 Miss. 128, 37 South. 559.

99 Knott v. McGilvray, 124 Cal. 128, 56 Pac. 789.

100 Baltimore etc. R. R. Co. v. Burns, 124 U. S. 166, 8 Sup. Ct. 421, 31 L. Ed. 333

100a Powers v. Chesapeake etc. Ry. Co., 169 U. S. 99, 18 Sup. Ct. 264, 42 L. Ed. 673.

101 Carson v. Hyatt, 118 U. S. 288, 6 Sup. Ct. 1050, 30 L. Ed. 167.

102 Insurance Co. v. Dunn, 19 Wall. 225, 22 L. Ed. 68; Virginia v. Rives,

100 U. S. 319, 25 L. Ed. 667; Hess v. Reynolds, 113 U. S. 80, 5 Sup. Ct. 377, 28 L. Ed. 927; Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080.

103 Babbitt v. Clark, 103 U. S. 612, 26 L. Ed. 507; Gibson v. Bruce, 108 U. S. 563, 2 Sup. Ct. 873, 27 L. Ed. 825.

104 Edrington v. Jefferson, 111 U. S. 774, 4 Sup. Ct. 683, 28 L. Ed. 594.

105 Pullman Palace Car Co. V. Speck, 113 U. S. 88, 5 Sup. Ct. 374, 28 L. Ed. 925.

106 Insurance Co. v. Dunn, 19 Wall. 225, 22 L. Ed. 68.

of commissioners to whom a claim has been referred by a probate court is not a final hearing;107 nor is the taking of testimony before a master under a stipulation between the parties.108

The objection that a petition for removal was not filed in time may be waived.10

109

§ 1032. Notice of application.-Parties to be affected by the removal should have reasonable notice of the application for removal and an opportunity to contest it. And when notice to the party interested is practicable, the court should not in any case rest its judgment upon a mere ex parte showing.110 It has been held, however, that under the act of 1887, where the ground. for removal is prejudice and local influence, notice to the adverse party is not jurisdictional, and that such motion may be made upon ex parte hearing. But the better, as well as the safer, practice would ordinarily be for the court to decline to hear the application until proper notice of the hearing had been given.111

§ 1033. Bond and order.-The mere filing of a petition is not a removal.112 Removal can be effected in a proper case only by the filing of a petition and bond.113 Where the cause is removable, it is, in law, removed upon the filing of petition and bond, notwithstanding an order of removal has been refused by a state court. The service of appropriate process on the clerk of the state court is sufficient, without any further order of the circuit. court. 115

114

The requirements for a bond, with good and sufficient surety, is suited by the presence of one surety able to respond to the condition of the bond; and a state court has no discretion to refuse the acceptance of a removal bond with such surety.118

107 Hess v. Reynolds, 113 U. S. 80, 5 Sup. Ct. 377, 28 L. Ed. 927.

108 Carson v. Hyatt, 118 U. S. 289, 6 Sup. Ct. 1050, 30 L. Ed. 167.

109 French v. Hay, 22 Wall. 244, 22 L. Ed. 799; Pacific Ry. Removal Cases, 115 U. S. 17, 5 Sup. Ct. 1113, 29 L. Ed. 319; Martin v. Baltimore etc. R. R. Co., 151 U. S. 688, 14 Sup. Ct. 533, 38 L. Ed. 311; Connell v. Smiley, 156 U. S. 338, 15 Sup. Ct. 353, 39 L. Ed. 443.

110 Schwenk v. Strang, 59 Fed. 209, 8 C. C. A. 92.

111 Reeves v. Corning, 51 Fed. 774. 112 Gregory v. Hartley, 113 U. S. 745, 5 Sup. Ct. 743, 28 L. Ed. 1150; Crehore v. Ohio etc. Ry. Co., 131 U. S. 244, 9 Sup. Ct. 692, 33 L. Ed. 144.

113 Manning v. Amy, 140 U. S. 140, 11 Sup. Ct. 757, 35 L. Ed. 386.

114 Marshall v. Holmes, 141 U. S. 595, 12 Sup. Ct. 62, 35 L. Ed. 870.

115 Virginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536, 37 L. Ed. 386.

116 Removal Cases, 100 U. S. 472, 25 L. Ed. 593.

FORMS FOR CHANGE TO FEDERAL COURT.

§ 1034. Entry of appearance.

Form No. 344.

[TITLE OF STATE COURT AND CAUSE.]

The said defendant, A. B., now comes, and by C. D., his attorney, enters his appearance in said action, and herewith also files his petition for the removal of said cause into the circuit court of the United States, in and for the . . . district, of the state of . . . C. D., Attorney for Defendant.

§ 1035. Petition for transfer from state court to a circuit court of the United States.

Form No. 345.

[TITLE OF STATE COURT AND CAUSE.]

To said Superior Court:

Your petitioner, C. D., respectfully shows that he is the defendant in the above-entitled suit; that said suit was brought by said plaintiff, A. B., on or about the... day of . . ., 19. ., in this court; that the said plaintiff at the time of the commencement of said suit was, and still is, a citizen of this state, and your petitioner then was, and still is, a citizen of the state of . . .

Your petitioner further represents that said action above entitled was brought by the said plaintiff for the purpose of [here briefly state the nature of and subject-matter of the suit, and the relief asked], and that the matter in dispute in said action exceeds the sum and value of two thousand dollars, exclusive of interests and costs.

Your petitioner further shows that he has herewith filed his appearance in said action, and offers herewith his bond, with good and sufficient surety, as required by section 3 of the act of Congress of March 3, 1887, and that your petitioner desires to remove said cause above entitled into the circuit court of the United States for the district of . . ., pursuant to said statute.

Your petitioner, therefore, prays that said bond may be accepted as good and sufficient, according to said statute, and that the said suit may be removed into the next circuit court of the United States in and for said district of . . ., pursuant to said statute in

such case made and provided, and that no further proceeding be had therein in this court.

And your petitioner will ever pray.

STATE OF...

COUNTY OF...

SS.

Attorney for Defendant.

C. D., being first duly sworn, says that he is the petitioner above named, that he has read the foregoing petition, and knows the contents thereof, and that each and every of the matters and things therein stated are true.

[JURAT.]

[SIGNATURE.]

§ 1036. The same-On ground of prejudice or local influence, under act of 1887.

Form No. 346.

In the Circuit Court of the United States for the District of.. [TITLE OF CAUSE.]

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To the Honorable the Judges of the Circuit Court of the United States for the District of . . :

Your petitioner, A. B., respectfully shows that the above-entitled suit is now pending for trial in the . . . court of . . . county, state of . . ., and has not yet been tried, and that your petitioner desires to remove said suit into the circuit court of the United States for the district of . . .

That your petitioner is the defendant [or, one of the defendants] in said suit, and that the matter in dispute therein exceeds the sum of two thousand dollars, exclusive of interest and costs.

Your petitioner further shows that there is, and was at the time said suit was brought, a controversy therein between your petitioner, who avers that he was, at the time said suit was brought, and still is, a citizen of the state of . . ., and the said plaintiff, who was then, and still is, a citizen of the state of . in which last-named state said suit was brought; and that both your petitioner and the said plaintiff are actually interested in said controversy.

That said suit was brought for the purpose of [briefly stating the nature of the suit and the relief asked].

Your petitioner further states that he has filed herewith an affidavit, that it may be made to appear to the said circuit court that, by reason of the existence of prejudice and local influence against

P. P. F. Vol. I-40

your petitioner, he will not be able to obtain justice in the said state court, or in any other state court to which your petitioner may, under the laws of the state of .., have the right, on account of such prejudice and local influence, to remove said.

cause.

Your petitioner, therefore, prays that the said affidavit may be accepted as good and sufficient, and that the said suit may be removed into the said circuit court of the United States for the district of . . . . aforesaid.

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Attorney for Petitioner.

§ 1037. Affidavit of prejudice or local influence to accompany the foregoing petition.

Form No. 347.

In the Circuit Court of the United States for the District of. [TITLE OF CAUSE.]

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I., A. B., being duly sworn, say that I am the defendant [or, one of the defendants] in the above-entitled cause, and that the existence of prejudice and local influence as alleged in the foregoing petition will sufficiently appear to the court from the following statement of facts: [State facts relied on as showing prejudice and local influence.] That, by reason of the existence of said prejudice and local influence, I shall not be able to obtain justice in said state court or in any other state court to which the said defendant may, under the laws of said state of . .'., have the right, on account of such prejudice and local influence, to remove said cause. [JURAT.]

§ 1038. Bond on removal under act of 1887.

Form No. 348.

Know all men by these presents, that I,

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[SIGNATURE.]

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as surety, are held and firmly bound unto . . . in the penal sum of . . . dollars, for the payment whereof well and truly to be made unto the said . . ., his heirs and assigns, we bind ourselves, our heirs, representatives, and assigns, jointly and severally, firmly by these presents.

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