filed its petition for removal and submitted affidavits tending to show that the employee sued had no possible connection with the matter and had been joined for the mere purpose of preventing a removal. The State Court ordered the removal. In the Federal Court the plaintiff moved to remand and filed counter affidavits. The Court reached the conclusion that the joinder was fraudulent and denied the motion. The Supreme Court affirmed the ruling below.1

It is necessary in such cases that the defendant in the petition for removal shall allege facts which, if true, will show the joinder to have been fraudulent."

333. Filing of Petition for Removal Does Not Waive Objection to Jurisdiction of State Court.-Very frequently a non-resident defendant wishes to claim that he has never been properly served with process in the State Court. He prefers to have the Federal Court determine whether he has or has not. It has been contended that when he comes into the State Court and files his petition for removal he thereby waives the objection that he has not been properly summoned. It is, however, clearly settled that no such waiver is thereby made. He can, and frequently does, successfully assert in the Federal Court his claim that the State Court never secured any jurisdiction over him.1

334. How a Case May Be Removed.-Section 29 of the Judicial Code specifies what a defendant, who wishes to remove one of the more ordinary kind of removable cases, on grounds other than for prejudice or local influence, shall do. He must prepare a duly verified petition setting forth facts which entitle him to remove and praying the State Court to direct the removal. This petition should contain all the necessary jurisdictional averments. If any of them are omitted, but are to be found in the previous record of the case, the

1 Wecker vs. National Enameling & Stamping Co., 204 U. S. 176. C. & O. Ry. Co. vs. Cockrell, 232 U. S. 146.

1 Wabash Western Ry. Co. vs. Brow, 164 U. S. 271.

omission may not necessarily be fatal. To omit any of them is, however, to run unnecessary risk. He must make and execute a bond with a sufficient surety that he will cause a certified copy of the record to be entered in the United States District Court within thirty days, and that he will pay all costs if the District Court shall hold that the removal was improperly made. Before he presents this petition and bond to the State Court he must give written notice to the other side that he proposes to do so.

335. Do. Except When There is a Separable Controversy or Prejudice or Local Influence, All Defendants Must Join in the Petition for Removal.-Unless there is a separable controversy or prejudice or local influence is alleged, all the substantial defendants must join in the petition for removal.

Purely nominal or formal parties need not. Parties who are sued, but who are not served with process are not defendants in the action. It suffices if all who are summoned join in the application.

336. Do.-For Prejudice or Local Influence.-The application to remove a case on the ground of prejudice or local influence is made not to the State Court, but to the Dis trict Court of the United States, although it is not a bad practice to file in the State Court a copy of the petition presented to the District Court, together with the supporting affidavits.1 These affidavits should set forth the facts which tend to show the existence of prejudice or local influence to such an extent as to make it probable that the defendant seeking to remove will not be able to obtain justice in the State Court or in any other State Court to which he would have the right to remove the case. The plaintiff may appear in the District. Court and file rebutting affidavits or the Court may hear oral testimony in support of the petition and in opposition thereto. If the United States Court decides that the allega

1 Bonner vs. Meikle, 77 Fed. 485.

tions of the petition have been sustained, it orders its clerk to certify to the State Court the order of removal, together with copies of the petition, bond and affidavit. The State Court is thereby advised of the action of the Federal Court and of its order of removal. It is the duty of the former to proceed no further with the suit and to direct its clerk to make a full and complete transcript of the record and certify the same to the United States Court for trial.2

337. Do.-A Single Defendant May Remove on Ground of Prejudice or Local Influence.-In order to remove on the ground of prejudice or local influence, the defendant seeking such removal must be a non-resident of the State in whose Courts the suit has been brought. On the other hand, he may remove upon this ground without his codefendants uniting in the petition for removal, and although there may be no separable controversy. The proviso following this portion of the section makes this clear. It says: "Provided, that if it further appear that said suit can be fully and justly determined as to the other defendants in the State court, without being affected by such prejudice or local influence, and that no party to the suit will be prejudiced by a separation of the parties, said District Court may direct the suit to be remanded, so far as relates to such other defendants, to the State court." That is to say, a single Don-resident defendant against whom prejudice or local influence operates, has the right to remove the case, whether it contains a separable controversy or not. When it gets over into the United States Court, if it then be made to appear that there is a separable controversy and that one or more of those separable controversies may be remanded to the State Court for separate trial without danger of injustice, such order will be made.

338. Do.-In Cases of Removal Because of Denial of Civil Rights.-In cases where removal is sought under

2 Southern Railway Co. vs. Allison, 190 U. S. 326.

the provisions of section 31 of the Judicial Code, the petition for removal may be filed at any time before the trial or final hearing. It should be filed in the State Court and need not be accompanied by any bond.

339. Do.-In Cases Against Persons Acting Under Revenue Law.-These petitions must be filed in the United States Court and not in that of the State. They may be filed at any time before the trial or final hearing. These last words are the same which were used in earlier Removal Acts. They were there held to refer to the final trial. It follows that

if there has been a mis-trial the petition for removal if filed before the new trial begins will be filed in time.1

340. Do.-State Court Must in First Instance Decide Whether Upon the Record the Case is Removable.— The State Court must of necessity before passing the order for removal determine whether upon the face of the record the case is removable, assuming the verity of all defendant's assertions of fact. If it conclude that it clearly is not, the order for removal should be refused and the case proceeded with. The defendant may, however, procure a transcript of the record and file it in the Federal Court. In this way he can secure a decision of the latter on the question of removability. If such decision is in the affirmative he may have further proceedings in the State Court enjoined. It is therefore expedient that the latter direct a removal unless it is clear either that the case is one, the removal of which is not authorized by law, or that the defendant has failed in some material respect to do all that the law requires of him to entitle him to remove.

341. Do.-State Court Need Not Permit a Removal on Defective Petition.-If the petition is defective the State Court may permit it to be amended, but will doubt

1 Insurance Co. vs. Dunn, 19 Wall. 214; B. & O. R. R. Co. vs. Bates, 119 U. S. 467.

Madisonville Trac. Co. vs. St. Bernard Mining Co., 196 U. S. 239. 1 Roberts vs. Pacific & A. Ry. & Nav. Co., 104 Fed. 577.

less be justified in refusing to order the removal of the case, if leave to amend is not sought, even although it may think it possible that by amendment the shortcoming could be supplied. If it does and the defendant avails himself of his right to file the transcript of record in the Federal Court he will take nothing by it; as his petition for removal is insufficient, the latter Court acquires no jurisdiction. It obviously cannot permt any amendment of the removal petition, because neither that nor any other part of the record is properly before it. On the other hand, if the State Court actually directs the removal, although it might properly have declined to do so, the case comes into the District Court, and the latter must pass upon the sufficiency of the proceeding by which the transfer was affected.

342. When and How Far the Petition for Removal is Amendable.-Whether the District Court may permit an amendment of a petition for removal at all has been doubted. It now seems settled that it may. There is still room for difference of opinion as to the circumstances under which the right may be exercised, and as to how far the amendment may go.

The allegation of a petition for removal was that the "plaintiff is a citizen of Missouri and the defendants are citizens of the State of New York." No question was made by any of the parties either in the Court below or in the Supreme Court as to the propriety of a removal. The latter of its own motion, nevertheless, held that as the petition for removal did not allege the citizenship of the parties except at the date when it was filed, and as it was not shown elsewhere in the record that the defendants were, at the commencement of the action, citizens of a State other than the one of which the plaintiff was at that date a citizen, the Circuit Court had no jurisdiction. The Supreme Court refused to pass upon the merits of the appeal, and reversed the judgment and remanded the case to the Circuit Court with directions to send it back to the State Court.1

1Stevens vs. Nichols, 130 U. S. 230.