4. A petition is not insufficient to justify the removal of a cause from a state court to a Federal circuit court because the allegation to set aside the service of summons was suc- | filed a notice of appeal on October 15, and cessfully argued in the state court. the next day gave notice of a motion to stay proceedings on the order, to be made on October 24. On the same October 16 the plaintiff made an affidavit in which it appeared that the sum which he sought to recover was more than $2,000. This contained the first definite notice to defendant, as no declaration had been filed. An order to take plaintiff's deposition and this affidavit that the time had not arrived at which the defendant was required to answer or plead is an allegation of a conclusion of law. 5. The presentation of the petition to a judge of the state court at chambers, and the filing of the petition in the state court, satisfy the statutory requirements respecting the removal of a cause from the state to a Federal circuit court. 6. The denial by an inferior state court of a motion to vacate the service of summons is not res judicata on the question of the valid ity of such service, when raised in the Federal circuit court to which the cause has been were served on the defendant on October 23. On October 26 a petition for removal to the United States circuit court was presented by the defendant to a judge of the state court in Chambers, and the bond was approved. Before the petition for removal was filed, the motion for a stay came up, on October 24, in the state court, and was argued, and a stay was ordered, the defendant at the same time being relieved from any default in appearing. The matter of the appeal was not passed upon. This order was entered on October 26. On November 4 the record was filed in the United States court. In the circuit court the defendant re Submitted February 27, 1905. Decided newed its motion to set aside the service of April 17, 1905. the summons, the plaintiff objecting on various grounds, which will be dealt with, On July IN ERROR to the Circuit Court of the and moving to remand the case. United States for the Northern District 23, 1904, the court granted the defendant's of New York to review a judgment dismiss-motion and overruled the plaintiff's, and on ing for want of jurisdiction of the defendant August 30 a judgment was entered disan action against a foreign corporation missing the action for want of jurisdiction which had been removed to that court from of the defendant. See Wabash Western R. a court of that state. Affirmed. Co. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126. The plaintiff's rights were saved by a bill of exceptions, the form of the judgment, and a certificate of the judge, and the case now is brought here. The facts are stated in the opinion. error. Mr. Maxwell Evarts for defendant in error. Mr. Justice Holmes delivered the opinion of the court: This is a writ of error to the circuit court upon a judgment dismissing the action for want of jurisdiction of the defendant. That question is certified from the court below. It is objected by the defendant that this court has not jurisdiction, on the ground that it does not appear that the want of jurisdiction of the court below as a Federal court was the ground of the judgment. But it appears clearly that the ground of the judgment was the absence of service on the defendant, and that the plaintiff denied the validity of the attempt to remove. See Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U. S. 282, 284, 285, 46 L. ed. 910, 912, 913, 22 Sup. Ct. Rep. 681, and cases cited. The former question was decided to be subject to review on error by this court in Shepard v. Adams 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214. That case has not been overruled. The latter question was held also proper to be brought here, in Powers v. Chesapeake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. The jurisdiction of this court must be sustained. The action was brought in the supreme court of the state of New York on April 10, 1903, by serving a summons on a director of the defendant in error, the railroad. On April 22 the plaintiff's attorney gave twenty days' additional time to the defendant in which to appear generally or specially, or to move to vacate the summons. On May 11 a firm of lawyers gave notice of a motion to set aside the service, and also that they appeared only for that purpose. An agreement was made giving the defendant time to appear after the motion was decided. The motion was not decided until September 28, 1903, when it was denied, and an order to that effect was entered on October 2. The defendant's attorneys' pired. It would be a strong interpretation Coming, then, to the motion to remand, it is said that the petition to remove was filed too late, because the time for answer had ex of the New York Code of Civil Procedure, | point is when the demand was stated in the § 418, to say that it requires an answer with case. Assuming the objection to be open in twenty days after the summons, when no here, if there was any defect, which we do complaint, or even notice stating the sum not imply, it was but a defect of form. of money for which judgment will be taken Powers v. Chesapeake & O. R. Co. 169 U. S. (§ 419), has been served. See Dancel v. 92, 98, 101, 42 L. ed. 673, 675, 676, 18 Sup. Goodyear Shoe Mach. Co. 106 Fed. 551. Ct. Rep. 264. The presenting of the petition But it is a sufficient reply to the motion to a judge in chambers, and the filing and to the objection to the removal, that of it in the state court, satisfied the statute. the petition was filed as soon as the case be- See Noble v. Massachusetts Ben. Asso. 48 came a removable one. Powers v. Chesa- Fed. 337. Loop v. Winters, 115 Fed. 362. peake & O. R. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Kansas City Suburban Belt R. Co. v. Herman, 187 U. S. 63, 67, 68, 47 L. ed. 76-78, 23 Sup. Ct. Rep. 24. The suggestion that the defendant was estopped by the fact that it followed up its motion to stay in the state court in accordance with its notice, on October 24, when the right to remove had been made to appear the day before, seems to us too technical, supposing it to be open here. Indeed, it was a proper preliminary in one respect. The order made on that motion was "that the defendant be relieved from any default in appearing herein, and that all proceedings on the part of the plaintiff be stayed, pending said appeal and until ten days after the decision thereof, except" an order for the examination of the plaintiff. It did not estop the defendant from insisting on a substantial right, that it got rid of a purely formal objection, which still is pressed, -in our opinion without ground. Dancel v. Goodyear Shoe Mach. Co. 106 Fed. 551. The order did not take effect until October 26. Wilcox v. National Shoe & Leather Bank, 67 App. Div. 466, 73 N. Y. Supp. 900; Hastings v. Twenty-third Ward Land Improv. Co. 46 App. Div. 609, 61 N. Y. Supp. 998; Vilas v. Page, 106 N. Y. 439, 455, 13 N. E. 743. It is urged that the petition did not justify removal, because the allegation that the time had not arrived at which the defendant was required to answer or plead was an allegation of a conclusion of law. Allegations which involve such conclusions import that the facts which justify them are true. Many such allegations are permitted, to avoid an intolerable prolixity on matters not likely to be controverted. Haskell v. Merrill, 179 Mass. 120, 123, 60 N. E. 485; Alton v. First Nat. Bank, 157 Mass. 341, 343, 18 L. R. A. 144, 34 Am. St. Rep. 285, 32 N. E. 228; Com. v. Clancy, 154 Mass. 128, 132, 27 N. E. 1001; Windram v. French, 151 Mass. 547, 551, 8 L. R. A. 750, 24 N. E. 914; Evans, Pl. 1st ed. 48, 139, 143-146, 149-157, 164. The facts appeared of record. When the defendant expected the plaintiff to demand more than $2,000 is immaterial. The only material We come, then, to the setting aside of the summons. We assume, for purposes of decision, as we already have assumed, that Shepard v. Adams, 168 U. S. 618, 42 L. ed. 602, 18 Sup. Ct. Rep. 214, is consistent with the decisions that the jurisdiction of the circuit court as a Federal court only is in question. Louisville Trust Co. v. Knott, 191 U. S. 225, 48 L. ed. 159, 24 Sup. Ct. Rep. 119; Bache v. Hunt, 193 U. S. 523, 48 L. ed. 774, 24 Sup. Ct. Rep. 547; Courtney v. Pradt, 196 U. S. 89, 25 Sup. Ct. Rep. 208, 49 L. ed. 398. If there has been no valid service the court has no power, and a distinction is possible between such a case and a mere question touching the proper limits between equity and law, or the traditional authority of the court. We leave Shepard v. Adams as we find it, since a reconsideration of the point is not necessary to decide the present It is said that the decision of the case. state court, although appealed from, was res judicata. But it stood no higher than a similar decision made by the circuit court, if the case had been begun before that court. It may be that the defendant would have had no right to renew its motion, but the circuit court would have had power to give it leave. If the circuit court was satisfied that it, or its predecessor the state court, had made a mistake, it had power to reopen the matter. It did so, and its action in that respect is not open to question here. However stringent may be the practice in refusing to reconsider what has been done, it still is but practice, not want of jurisdiction, that makes the rule. The plaintiff in error does not argue the merits of the order of the circuit court. Assuming that they, as well as the jurisdiction of the court to make the order, are open here, we see no sufficient reason for disturbing the decision. The circuit court was warranted by the affidavits before it in finding that the defendant was doing no business and had no property in the state of New York, and that the service on a director casually within the state for a few days was bad. Conley v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728; Geer v. Mathieson Alkali Works, 190 U. S. 428, 47 L. ed. 1122, 23 Sup. Ct. | county surveyors of Nemaha county, NeRep. 807. The arguments do not seem to braska, and Atchison county, Missouri, as us to need to be noticed in greater detail. reported by the commissioners and set forth Judgment affirmed. in the opinion of the court, constitute and be correct boundary lines between the said states, the same constituting the middle of the old channel of Missouri river as found by said court in its opinion. (197 U. S. 577) STATE OF MISSOURI, Complainant, ORIGIN [No. 5, Original.] March 6, 1905. RIGINAL SUIT in equity on bill and cross bill to settle a disputed boundary line between the states of Missouri and Nebraska. Final decree entered establishing the middle of the channel of the Missouri river according to its course prior to July 5, 1867, as the true boundary line. See same case, ante, p. 155. This cause coming on for final decree, in pursuance of the opinion of this court filed herein on December 19, 1904, and the stipulation of the respective parties by their counsel filed herein on January 30, 1905, which said stipulation is in words and figures as follows, to wit: "In the opinion of the court in the aboveentitled cause, the order and finding of the court having been made as follows: "It appears from the record that about the year 1895 the county surveyors of Nemaha county, Nebraska, and Atchison county, Missouri, made surveys of the abandoned bed of the Missouri river, ascertained the location of the original banks on either side, and to some extent marked the middle of the old channel. If the two states will agree upon these surveys and locations as correctly marking the original banks of the river and the middle of the old channel, the court will, by decree, give effect to that agreement; or, if either state desires a new survey, the court will order one to be made, and will cause monuments to be placed so as to permanently mark the boundary lines between the two states. The disposition of the case by final decree is postponed for forty days, in order that the court may be advised as to the wishes of the parties in respect to these details." "In pursuance whereof now come the parties hereto by their respective counsel, and agree that the said surveys made by the "It is further agreed between the parties hereto that the monuments marking said boundary line established by the said county surveyors of said counties are not of a permanent character, and many of them have become destroyed or removed, and that in order to mark a permanent boundary line it is necessary and is deemed best that permanent monuments be erected at regular intervals on said line in such manner as will quiet all dispute in reference to said bound ary. "It is further agreed that said permanent monuments can be best established under the supervision of the commissioners heretofore appointed by the court, to wit, Alfred Hazlett and John W. Halliburton; and it is therefore requested by the parties to this cause that the court, by a proper order, direct and require said commissioners to establish or cause to be established under their direction such permanent monuments as may by them be deemed necessary in the premises and in accordance with the order of the court heretofore made, and make a report to the court of their acts and doings therein. In the execution of their powers herein, said commissioners shall have authority to employ such surveyors and other assistants and procure such material as may be necessary in the establishment of the permanent monuments, marking said boundary line in accordance with the opinion of the court heretofore rendered and this agreement. "It is further agreed that said commissioners for their services herein shall receive such compensation as may be agreed upon by the respective parties, and if the parties. are unable to agree, then such as may be fixed by the court after the services have been performed and due report thereon made. "On account of the unfavorable condition of the weather during the winter months and of the character of the ground during the spring months, the parties hereto respectfully request the court that said commissioners be granted until the 1st day of May, 1905, in which to make their report. "State of Missouri, Complainant, "By Edward C. Crow, "Sam B. Jeffries, "Attorney General. "Assistant Attorney General. "State of Nebraska, Defendant, "By F. N. Prout, Attorney General." And on motion of Herbert S. Hadley, at- | channel of the Missouri river, according to torney general of the state of Missouri, counsel for said complainant, that a decree be entered in this cause in accordance with said opinion and stipulation: It is now here ordered, adjudged, and, decreed by this court that the middle of the its course as it was prior to the avulsion of July 5, 1867, is and shall be the true boundary line between Missouri and Nebraska, and that said boundary line is indicated upon and shown by the following plat: |