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CHAPTER XXXII.

REMOVAL OF CAUSES.

§ 537. History of legislation upon removals from State and Federal courts. The right of removal from the State to the Federal courts was first granted by the Judiciary Act of September 24th, 1789.1 It was continuously extended: by the act of March 2nd, 1833, passed during the attempt at nullification by South Carolina; 2 and by the acts of March 3rd, 1863,3 April 9th, 1866, May 11th, 1866,5 July 13th, 1866,6 July 27th, 1866,7 February 5th, 1867,8 March 2nd, 1867,9 July 27th, 1868,10 May 31st, 1870,11 February 28th, 1871,12 and March 30th, 1872.18 All of these were incorporated in the Revised Statutes of 1873.14 The right was further extended by the first act of March 3rd, 1875, an appropriation bill which included a clause upon the subject; 15 and by the second act, known as the Judiciary Act, of March 3rd, 1875, which was intended to extend the same to the full extent authorized by the Constitution of the United States.16 The right of removal was restricted by the act of March 3rd, 1887.17

The enrollment of this last act contained a few clerical errors, which were corrected by a statute re-enacting the same, ap

79.

§ 537. 1 Ch. 20, § 12, 1 St. at L.

2 Ch. 57, § 3, 4 St. at L. 633.
3 Ch. 81, § 5, 12 St. at L. 756.
4 Ch. 31, § 3, 14 St. at L. 27.
5 Ch. 80, §§ 3, 5, 14 St. at L. 46.
6 Ch. 184, § 67, 14 St. at L. 171.
Ch. 288, 14 St. at L. 306.
8 Ch. 27, 14 St. at L. 385.
9 Ch. 196, 14 St. at L. 558.

10 Ch. 255, § 2, 15 St. at L. 227.
11 Ch. 114, §§ 16, 18, 16 St. at L.

144.

12 Ch. 99, § 16, 16 St. at L. 438.

13 Ch. 72, 17 St. at L. 44.

14 §§ 639, 640, 641, 642, 643, 644, 645, 646 and 647.

15 Ch. 130, § 8, 18 St. at L. 371. 16 Ch. 137, 18 St. at L. 471.

Senator George F. Edmunds, who took part in the enactment of that law, told the writer that that was the intention.

17 Ch. 373, 24 St. at L. 552. For the report and debate in Congress see Foulk v. Gray, 120 Fed. 156, 160, 18 Cong. Rec. 2724.

proved August 13th, 1888.18 The act of February 8th, 1894,19 repealed so much of the former statutes as gave a right of removal to an officer of the United States, engaged in the enforcement of the act to regulate Congressional elections.20

The Act of April 5, 1910, provided that cases arising under the Employers' Liability Act should not be removed.21

The Judicial Code of March 3, 1911, repealed the former statutes except the Employers' Liability Act, directed that the removals be made to the District Courts, instead of as formerly to the Circuit Courts which it abolished, increased the value of matter in dispute from two thousand dollars to three thousand dollars, made certain changes in the practice and then reenacted the law substantially as it previously stood.22

An amendment to the Judicial Code passed January 20, 1914, forbids the removal of suits against common carriers for damages in transportation where the matter in controversy does not exceed, exclusive of interest and cost, the sum or value of $3,000.23

Since the statutes regulating removals expressly cover only a few of the cases arising in actual practice, it has been said that the courts must often disregard express words and find the proper rule from the intent and history of the legislation upon the subject.24 While the sections of the Judiciary Act of March 3, 1887, as amended August 13, 1888, which relate to the jurisdiction of the Federal Courts venue and the removal of causes, have been to some extent changed in phraseology by the Judicial Code, which divided the former statute into numerous sections, the scope of the former law was not changed, and

18 Symonds v. St. Louis & S. E. Ry. Co., 192 Fed. 353; Strauser v. Chicago B. & Q. R. Co., 193 Fed. 293; Saiek v. Pennsylvania R. Co., 193 Fed. 303; Lee v. Toledo, St. L. & W. Ry. Co., 193 Fed. 685; Ullrich v. N. Y., N. H. & H. R. Co., 193 Fed. 768; Hulac v. Chicago & N. W. Ry. Co., 194 Fed. 747; McChesney v. Illinois Cent. R. Co., 197 Fed. 85. Contra, Van Brimmer v. Texas & P. Ry. Co. (E. D. Texas), 190 Fed.

19 Strauser v. Chicago, B. & Q. R. Co., 193 Fed. 293.

20 Ullrich v. N. Y., N. H. & H. R. Co., 193 Fed. 768.

21 Ch. 866, 25 St. at L. 433. 22 Jud. Code, $$ 297, 28-29, 36 St. Vat L. 1087.

23 Ch. 11, 38 St. at L. 278, Comp. St., § 1010.

24 Eddy v. Chicago & N. W. Ry. Co., 226 Fed. 120.

decisions thereunder have a similar effect to those decided under the Judicial Code 25

§ 537a. Removal of causes from one Federal Court to another. "Sec. 58. Any civil cause, at law or in equity, may, on written stipulation of the parties or of their attorneys of record signed and filed with the papers in the case, in vacation or in term, and on the written order of the judge signed and filed in the case in vacation or on the order of the court duly entered of record in term, be transferred to the court of any other division of the same district, without regard to the residence of the defendants, for trial. When a cause shall be ordered to be transferred to a court or in any other division, it shall be the duty of the clerk of the court from which the transfer is made to carefully transmit to the clerk of the court to which the transfer is made the entire file of papers in the cause and all documents and deposits in his court pertaining thereto, together with a certified transcript of the records of all orders, interlocutory decrees, or other entries in the cause; and he shall certify, under the seal of the court, that the papers sent are all which are on file in said court belonging to the cause; for the performance of which duties said clerk so transmitting and certifying shall receive the same fees as are now allowed by law for similar services, to be taxed in the bill of costs, and regularly collected with the other costs in the cause; and such transcript, when so certified and received, shall henceforth constitute a part of the record of the cause in the court to which the transfer shall be made. The clerk receiving such transcript and original papers shall file the same and the case shall then proceed to final disposition as other cases of a like nature.

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"Sec. 59. Whenever any new district or division has been or shall be established, or any county or territory has been or shall be transferred from one district or division to another district or division, prosecutions for crimes and offenses committed within such district, division, county or territory, prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, 25 Keating v. Pennsylvania Co.,

245 Fed. 155.

or such county or territory had not been transferred, unless the court, upon the application of the defendant, shall order the cause to be removed to the new district or division for trial. Civil actions pending at the time of the creation of any such district or division, or the transfer of any such county or territory, and arising within the district or division so created or the county or territory so transferred, shall be tried in the district or division as it existed at the time of the institution of the action, or in the district or division so created, or to which the county or territory is or shall be so transferred, as may be agreed upon by the parties, or as the court shall direct. The transfer of such prosecutions and actions shall be made in the manner provided in the section last preceding.

"Sec. 60. The creation of a new district or division, or the transfer of any county or territory from one district or division to another district or division, shall not affect or divest any lien theretofore acquired in the circuit or district court by virtue of a decree, judgment, execution, attachment, seizure or otherwise, upon property situated or being within the district or division so created, or the county or territory so transferred. To enforce any such lien, the clerk of the court in which the same is acquired, upon the request and at the cost of the party desiring the same, shall make a true and certified copy of the record thereof, which, when made and certified, and filed in the proper court of the district or division in which such property is situated or shall be, after such transfer, shall constitute the record of such lien in such court, and shall be evidence in all courts and places equally with the original thereof; and thereafter like proceedings shall be had thereon, and with the same effect, as though the cause or proceeding had been originally instituted in such court. The provisions of this section shall apply not only in all cases where a district or division is. created, or a county or any territory is transferred by this or any future Act, but also in all cases where a district or division has been created, or a county or any territory has been transferred by any law heretofore enacted."

§ 537a. 136 St. at L. 1103, Comp. St., §§ 1040, 1041, 1042.

"1

A suit brought in a Territorial court cannot be removed, when, after answer, it has passed into the jurisdiction of a State court upon the admission of the Territory as a State.2

§ 537b. Removal of suits arising under the Constitution or laws of the United States. "Any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, of which the District Courts of the United States are given original jurisdiction by this title, which may now be pending or which may hereafter be brought, in any State court, may be removed by the defendant or defendants therein to the District Court of the United States for the proper district." 1

It has been held that there can be no removal for this cause when neither party is a resident of the district: No case arising under an Act entitled "an act relating to the liability of common carriers by railroad to their employees in certain cases," approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any State court of competent jurisdiction shall be removed to any court of the United States. 3

The matter in dispute must exceed in value three thousand dollars, exclusive of interest and costs.

Where the plaintiff's pleading does not show that his cause of action arises under the Constitution or laws of the United States, the defendant cannot remove the case because his de

2 Ames v. Colorado Cent. R. Co., Fed. Cas. No. 325 (4 Dill. 260). For the removal of cases brought in Territorial courts when the Territory has subsequently been admitted as a State. See Anaconda Copper Mining Co. v. Butte-Balaklava C. Co., 200 Fed. 808; U. S. v. Alamogordo Lumber Co., New Mexico, C. C. A., 202 Fed. 700; Utah Const. Co. v. St. Louis Construction & Equipment Co., D. New Mexico, 254 Fed. 331.

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236 St. at L. 291, ch. 143, infra, § 537h.

8 Clark v. Southern Pac. Co. (W. D. Texas) 175 Fed. 122; Bottoms v. St. Louis & S. F. R. Co., 179 Fed. 318. See §§ 61, 62, supra.

4 See § 6, supra: It has been held that a case arising under the revenue laws cannot be removed unless the value of the matter in dispute exceeds the jurisdictional amount, although the Federal court might have had original jurisdiction over the same. Johnson v. Wells, Fargo & Co., 91 Fed. 1.

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