CHAPTER VI.

OF THE REMOVAL OF CAUSES TO THE UNITED STATES

CIRCUIT COURT.

ARTICLE I.

IN WHAT CASES.

Section 1. In general. The power to remove a cause from a State court into the circuit court of the United States was conferred by the judiciary act of 1789. By the provisions of this act, the power of removal may be exercised in cases where a suit is brought against an alien, or by a citizen of the State in which the suit is brought against a citizen of another State, and the value of the matter in dispute exceeds, exclusive of costs, $500; and in controversies between citizens of the same State claiming lands under grants of different States. Act of Cong., Sept. 24, 1789, ch. 20, § 12.

Subsequent acts of congress further provide that, where a suit or prosecution shall be commenced in a court of any State against any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under color thereof, or for or on account of any right, authority, or title set up or claimed by such officer, or other person, under any such law of the United States, such action may be removed to the circuit court and the proceedings in the State court shall be stayed, and if the defendant has been arrested the circuit court shall issue a habeas corpus. Act of Cong., March 2, 1833.

If any suit is commenced in any State court against any officer or other person for any arrests or acts done by him during the rebellion of 1861, by virtue or under color of any authority derived from, or exercised by, or under the president of the United States, or any act of congress, such suit may be removed to the circuit court. Acts of Cong., March 3, 1863, May 11, 1866, · January 22, 1869.

If a suit is brought in any State court in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State, and the matter in

In what cases.

dispute exceeds $500, such citizen of another State, whether plaintiff or defendant, may remove the suit to the circuit court, if he files' an affidavit stating that he believes that from prejudice or local influence he will not be able to obtain justice in such State court. Act of Cong., March 2, 1867.

Any corporation, or any member thereof, other than a banking corporation, organized under a law of the United States, and against which a suit at law or in equity has been, or may be, commenced, in any court other than a circuit or district court of the United States for any liability or alleged liability of such corporation, or any member thereof, as such member, may have such suit removed from the court in which it may be pending to the proper circuit or district court of the United States, upon filing a petition therefor, verified by oath, either before or after issue joined, stating that they have a defense arising under or by virtue of the constitution of the United States, or any treaty or law of the United States, and offering good and sufficient security for entering in such court, on the first day of its session, copies of all process, proceedings, etc., and doing such other appropriate acts as are required to be done by act of congress of July 27, 1866. And it shall thereupon be the duty of the court to accept the surety, and to proceed no further in the suit. And the said copies being so entered as aforesaid in such court (of the United States), the suit shall then proceed in the same manner as if it had been brought there by original process, etc. Act of Cong., July 27, 1868, ch. 245, § 2.

To bring the above provisions of the statutes into operation, it is required that the case should come strictly within their terms. Cooley v. Lawrence, 12 How. 176; S. C., 5 Duer, 605.

Thus, the act of 1789 is held not to apply where both the parties are non-residents of the State. Smith v. Butler, 38 How. 192. And, where three out of four plaintiffs were aliens, and the fourth a citizen, an application of the defendant was denied. Denniston v. The New York and New Haven R. R. Co., 2 Abb. 278; affirmed, id. 415; S. C., 1 Hilt. 62.

So, the provisions of the judiciary act do not authorize a removal of an action brought against more than one defendant, if any defendant is a citizen of the State in which the action is brought. Fisk v. Chicago, Rock Island and Pacific Railroad Co., 3 Abb. N. S. 453; S. C., 53 Barb. 472; id. 513. The complainant in a bill of interpleader is not, before being discharged

In what cases.

by a decree that the defendants interplead, to be deemed a mere nominal party; and though the defendants are citizens of different States, the cause cannot be removed to the United States , court before such decree, if one of the defendants is of the same State with the complainant. Leonard v. Jamison, 2 Edw. Ch. 136; Ward v. Arredondo, 1 Paine's C. C. 410.

In a suit between aliens, the declaration by the plaintiff of his intention to become a citizen of the United States does not entitle the defendant to a removal of the cause to the United States court. Mossman v. Higginson, 4 Dall. 12; Montalet v. Murray, 4 Cranch, 46; Browne v. Strode, 5 id. 303; Jackson v. Twentyman, 2 Pet. 136; Orosco v. Gagliardo, 22 Cal. 83.

It is now settled that corporations are citizens within the rule of the statute; and the right of a corporation to the removal of an action against it from the court of any other State to a court of the United States, is not affected by the fact, that it had appointed, within the State where the suit was brought, an agent for the service of process on it, according to the laws of such State, nor by the fact that a portion of its directors reside within such State. Stevens v. Phonix Insurance Co., 41 N. Y. (2 Hand) 149; reversing S. C., 24 How. 517; Fisk v. Chicago, Rock Island and Pacific Railroad Co., 3 Abb.. N. S. 453; S. C., 53 Barb. 472; Fisk v. Union Pacific Railroad Co., 10 Abb. N. S. 457, 467; Barney v. Globe Bank, 2 Am. Law Reg. N. S. 221. A corporation created by the laws of one State, and having its principal place of business and holding its meetings there, must be regarded, for purposes of jurisdiction, as a citizen of that State, although its business consists of traffic between that State and another. Kranshaar v. New Haven Steamboat Co., 7 Rob. 356. And a railroad corporation of one State, authorized by a law of another State to extend its track into the latter, and do business therein, is still a citizen of the former, and not of the latter State. Denniston v. New York and New Haven Railroad Co., 1 Hilt. 62; S. C., 2 Abb. 278, 415. Actions commenced in the courts of this State, by one foreign corporation against another, cannot be removed under the act of 1789. Ayers v. Western Railroad Co., 48 Barb. 132; S. C., 32 How. 351. But, where the assignee of a foreign corporation, suing another foreign corporation, is a citizen of this State, the action may be removed, provided the claim is of such a nature that the United States can take cognizance of it. Ib.

Proceedings for removal.

To justify a removal the matter in dispute must exceed $500, and, if any doubt exists as to what is the real amount in dispute, the State court may inquire into it by the evidence. Ladd v. Tudor, 3 Woodb. and M. 325. But the defendant cannot be deprived of the right to a removal, by an amendment reducing the amount claimed below $500, allowed in the State court after the removal has become complete. Kanouse v. Martin, 15 How. (U. S.) 198.

An action to set aside an issue of corporate stock to a large amount, and to enjoin any future transfers or sales thereof, is a case where the matter in dispute exceeds the sum of $500, exclusive of costs. Fisk v. Chicago, Rock Island and Pacific Railroad Co., 3 Abb. N. S. 453; S. C., 53 Barb. 472.

Under section 12 of the judiciary act of 1789, all the defendants were required to join in an application for the removal of a cause from a State into a federal court, and upon a like application for a removal under the act of 1867, on the ground that, from prejudice or local interest, justice cannot be obtained in the State court, all the parties defendant must be joined. Cooke v. The State National Bank of Boston, 1 Lans. 494; Bryan v. Ponder, 23 Ga. 480; Calderwood v. Hager, 20 Cal. 167.

In an action of tort against several, one only being served, and the others returned not found, the one served may alone petition for a removal. Norton v. Hayes, 4 Denio, 245. And where one of two defendants is a citizen of another State and there is no joint trust, interest, duty, or concern, in the subjectmatter of controversy, he may be allowed to appear and defend alone so as to enable him to remove the cause. Livingston v. Gibbons, 4 Johns. Ch. 94.

ARTICLE II.

PROCEEDINGS FOR REMOVAL.

Section 1. Petition for. The proceedings for removal, in cases where a removal is allowed by section 12 of the judiciary act of 1789, must be commenced by the defendant, who shall file a petition in the State court for the removal of the cause for trial into the next circuit court to be held in the district where the suit is pending. Act of 1789, § 12.

Facts necessary to bring the case within the provisions of the

Proceedings for removal.

12th section must appear in the petition, to fully satisfy the court; but if by accident the statement of a material fact is omitted, it may be supplied. Field v. Blair, 1 Code R. N. S. 292; S. C. affirmed, id. 361.

It must be stated in the petition that the petitioner is a citizen of another State. Corp v. Vermilye, 3 Johns. 145; Eastin v. Rucker, 1 J. J. Marsh, 232; Beebe v. Armstrong, 11 Martin, 440. The court must be satisfied as to the petitioner's alienage or citizenship in another State, as well as in respect to the amount in controversy. Disbrow v. Driggs, 16 How. 346; S. C., 8 Abb. 305, note. See Eastin v. Rucker, 1 J. J. Marsh, 232; Beebe v. Armstrong, 11 Martin, 440. Alleging citizenship, at the present time, is not enough. Savings Bank of Cincinnati v. Benton, 2 Metc. (Ky.) 240; People v. Western Transportation Co., 34 Ill. 356; Holden v. Putnam Fire Ins. Co., 46 N. Y. (1 Sick.) 1. The petition must, in all cases, be verified. Id. ; Ogden v. Baker, 1 Greene (N. J.) 75.

Where the application is made by a corporation, the affidavit must be by an officer authorized to make it. A secretary is not presumed to be authorized, for it is not an act within his ordinary powers or duties. Dodge v. North Western Packet Co., 16 Minn. 458.

The petition must be filed, at the time specified by the statute, in order to entitle the petitioner to a removal. Serving the petition on the plaintiff with notice of presenting it, followed by the filing of the petition on moving at a subsequent term, is not enough. Redmond v. Russell, 12 Johns. 153. Only the defendant served need petition, and if the petition is signed by the attorney it is sufficient. Cooke v. State National Bank of Boston, 1 Lans. 494; Vandevoort v. Palmer, 4 Duer, 677.

The court will not grant an order of removal upon the petition when filed without notice to the plaintiff, or an order to show cause. Disbrow v. Driggs, 16 How. 346; S. C., 8 Abb. 305, note; Bristol v. Chapman, 34 How. 140. In proceedings under section 12, for the removal of a cause, where the subject of controversy involves a question as to the validity of conflicting grants of two different States, no petition is necessary, the application of either party on affidavit being sufficient for the purposes of a motion. Cooke v. State National Bank of Boston,

1 Lans. 494.