Nevertheless, upon these conditions: The said . tioned the . . . court of . . . county, state of of a certain cause therein pending, wherein ., having petifor the removal is plaintiff and . . . is defendant, to the circuit court of the United States in and for the district of : Now, if the said ., your petitioner, shall enter in the said court of the United States, on the first day of its next sesison, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said circuit court of the United States, if such court shall hold that said suit was wrongfully or improperly removed thereto, then this obligation shall be void; otherwise, it shall remain in full force and virtue. Witness our hands and seals, etc. STATE OF . [L. S.] COUNTY OF ... I, . . ., of said county, the surety named in the foregoing bond, being duly sworn, depose and say: I am a resident of the state of and am a property-holder therein; that I am worth the sum of two thousand dollars over and above all my debts and liabilities, and exclusive of property by law exempt from sale on execution. [JURAT.] [SIGNATURE.] § 1039. Petition for removal on ground of citizenship under act of 1887. Form No. 349. [TITLE OF STATE COURT AND CAUSE.] To said court: Your petitioner respectfully shows to this honorable court that he is the defendant in the above-entitled suit; that he is a nonresident of the state in which said suit was brought, and was at the time of the commencement of this suit, and still is, a citizen of the state of . . . That the said suit is of a civil nature [briefly stating its nature and the relief asked]; and that the matter and amount in dispute in the said suit exceeds the sum or value of two thousand dollars, exclusive of interests and costs. That the controversy in said suit is wholly between citizens of different states, to-wit: Between your petitioner, who, as aforesaid, was at the time of the commencement of this suit, 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 . . . And your petitioner offers herewith a bond, with good and sufficient surety, for his entering in said circuit court of the United States, on the first day of its next session, a copy of the record in this suit, and for the payment of all costs that may be awarded by said circuit court, if said court shall hold that this suit was wrongfully or improperly removed thereto. And your petitioner prays this honorable court to proceed no further in said cause, except to make the order of removal now prayed for and required by law, and to accept the said surety and bond, and to cause the record herein to be removed into the said circuit court of the United States in and for the district of . and your petitioner will ever pray. Attorneys for Petitioner. § 1040. The same. Form No. 350. [Where the ground of removal is that the suit is one "arising under the constitution and laws of the United States, or treaties made under their authority," follow the above form down to the star (*), and then insert the following:] Your petitioner further shows that said suit is one arising under the laws [or, constitution; or, treaties, as the case may be] of the United States, in this: [Here state the facts showing that a federal question necessary to a proper decision of the case is involved.] [After which, follow above form to the conclusion.] § 1041. Notice of motion for removal. Form No. 351. [TITLE OF STATE COURT AND CAUSE.] To . . ., Plaintiff's Attorney: Take notice, that upon the petition and appearance of the defendant, of which a copy is hereto annexed, and which were on, etc., [or, upon the petition, a copy of which is hereto annexed, and which, together with the petitioner's appearance herein already served on you, was, on, etc.] filed in this court, and upon the bond of the petitioner and his sureties [or, the bond on behalf of the petitioner], a copy of which is also annexed, defendant will, on . . ., at ... at the hour of . . ., move the court that said cause be removed from this court to the circuit court of the United States for the district of . . . [DATE.] § 1042. Order to show cause. Form No. 352. [TITLE OF STATE COURT AND CAUSE.] To..., Plaintiff's Attorney: [SIGNATURE.] The defendant having this day entered an appearance in this cause, and at the same time filed a petition praying for the removal of this action to the circuit court of the United States for the district of California, pursuant to the act of Congress of the United States in such case made and provided, and offered the surety as therein provided by a bond now filed, it is ordered that the plaintiff show cause on . the... day of .next, before this court, at the opening of court on that day, or as soon thereafter as practicable, why the prayer of said petition should not be granted, and in the mean time, and until the hearing of said petition, let all proceedings on the part of the plaintiff herein be stayed. [DATE.] E. D., District Judge. § 1043. Order for removal of cause to United States court. [TITLE.] Form No. 353. Upon reading and filing the petition of . . ., the defendant in the above-entitled action, and upon filing the bond, and good and sufficient sureties having been offered by the said defendant in the premises, and the same being by me, the judge of said superior court, duly accepted, it is hereby ordered that no further proceedings be had in this cause, and the removal of the same to the circuit court of the United States for the district of California, to be held in and for the... district of California, be and the same is hereby allowed and ordered, in accordance with the aforesaid petition and the statute of the United States in such case made and provided. [DATE.] [SIGNATURE.] § 1044. Writ of certiorari under section 7 of the act of March 3, 1875. Form No. 354. The President of the United States of America to the Judge of the Superior Court of the County of . . ., in and for the State of California: Whereas, it hath been represented to the circuit court of the United States for the district of that a certain suit was commenced in the [here name the state court], wherein . . a citizen a citizen of the state of the state of . . ., was plaintiff, and . of . . ., was defendant, and that the said . . . duly filed in the said state court his petition for the removal of said cause into the said circuit court of the United States, and filed with said petition the bond with surety required by the act of Congress of March 3, 1875, entitled "An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes," and that the clerk of the said state court above named has refused to the said petitioner for the removal of said cause a copy of the record therein, though his legal fees therefor were tendered by the said petitioner: You, therefore, are hereby commanded that you forthwith certify, or cause to be certified, to the said circuit court of the United States for the district of. . ., a full, true and complete copy of the record and proceedings in the said cause, in which the said petition for removal was filed as aforesaid, plainly and distinctly, and in as full and ample a manner as the same now remain before you, together with this writ; so that the said circuit court may be able to proceed thereon, and do what shall appear to them of right ought to be done. Herein fail not. Witness, the Honorable Melville W. Fuller, chief justice of the supreme court, and the seal of said circuit court thereto affixed, this, the... day of . A. D. 19.. [SEAL.] Clerk of said Court. CHAPTER XXXIX. SUMMONS. § 1045. Nature of the writ.-Before a court can proceed with the trial of a case, it is necessary, in order to invest the court with Jurisdiction, that some process be served upon the defendant. This process is generally termed a "summons," and is a notice to the defendant that an action has been commenced against him. It informs the defendant as to who has commenced the action, where it is brought, in what court it is brought, the relief demanded, and that if the defendant fails to answer within a specified time after the service of the summons default will be taken against him. The object of the writ is to put the defendant upon notice of the demand against him and to bring him into court at the time. therein specified.1 Summons need not be served on plaintiff or upon any co-defendants when a defendant files a cross-complaint.2 In California, the summons always follows the complaint, and is issued only after the filing of a complaint; in some states the summons precedes the complaint, and the issuance of it is the first step in the commencement of the action. In California, the writ may be issued at any time within one year after the filing of the complaint, and unless the summons and a certified copy of the complaint, duly attested, in condition to serve, are placed at the disposal of the plaintiff for service within one year from the filing of the complaint, the action should be dismissed. The only limitation upon the exercise of the power of the court to dismiss a cause for delay in the service of the summons is that it must not be abused." ба The provision of the Colorado statute, ca that the complaint must be filed within ten days after the summons is issued, or the action may be dismissed, is not mandatory; but the authority to dismiss rests in the sound discretion of the court, and should not be arbi 1 Sweeney v. Schultes, 19 Nev. 53, 6 Pac. 44. 2 Barnes v. Colo. Sprs. C. C. D. Ry., 42 Colo. 461, 94 Pac. 570. 3 Cal. Code Civ. Proc., § 405; Hill v. Morgan, 9 Idaho, 718, 76 Pac. 323; Nevada Civ. Prac. Act, § 22. 4 Cal. Code Civ. Proc., § 406. 5 Reynolds v. Page, 35 Cal. 296. Kreiss v. Hotaling, 99 Cal. 383, 33 Pac. 1125. Compare Kubli v. Hawkett, 89 Cal. 638, 27 Pac. 57; Saville v. Frisbie, 70 Cal. 87, 11 Pac. 502; Cowell v. Stuart, 69 Cal. 525, 11 Pac. 57. 6a Code Civ. Proc., § 32. |