10

The entry into trial in the State court without a protest.1 The right is not waived by a previous objection to the jurisdiction of the State court and proceedings founded upon such objection,11 such as the trial of a plea in abatement, 12 nor by an appeal from an order denying a motion to set aside the service of the summons and a motion to stay proceedings pending such appeal,13 nor by opposition to an application for any interlocutory remedy, or a proceeding to dissolve such a remedy,14 as an attachment,15 nor by the filing and procurement of the approval of a bond to dissolve an attachment,16 nor by a voluntary appearance in the State court,17 nor by the filing of a demurrer, 18 or an answer, 19 or a plea in abatement,20 nor by argument in opposition to a motion to strike out his pleading, at least when the same does not affect the merits of the controversy,21 nor, it has been held, by his consent to the appointment of an auditor,22 nor by entry into an arbitration resulting in an award which is not binding except by mutual consent,23 nor by appealing from such award,24 nor, it has been

Fed. Cas. No. 6,035 (13 Blatchf. 224).

10 Rosenthal v. Coates, 148 U. S. 142, 13 Sup. Ct. 576, 37 L. ed. 399. 11 Remington v. Central Pac. R. Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. ed. 959; Lockhart v. Memphis & L. R. R. Co., 38 Fed. 274; Baumgardner v. Bono Fertilizer Co., 58 Fed. 1; Donahue v. Calumet Fire Clay Co., 94 Fed. 23.

12 Lockhart v. Memphis & L. R. R. Co., 38 Fed. 274.

13 Remington v. Central Pac. Ry. Co., 198 U. S. 95, 25 S. Ct. 577, 49 L. ed. 959.

14 Cella, Adler & Tilles v. Brown, 136 Fed. 439, 440; but see Dart v. Arnis (New York), 19 How. Prac. 429.

15 Cella, Adler & Tilles v. Brown, 136 Fed. 439; Calderhead v. Downing, 103 Fed. 27.

16 Purdy v. Wallace Muller & Co., 81 Fed. 513; Whiteley Malleable Castings Co. v. Sterlingworth.

Fed. Prac. Vol. III-45

17 Healy v. Prevost, Fed. Cas. No. 6,297; Stevens v. Richardson, 9 Fed. 191 (20 Blatchf. 53); Connor v. Skagit Cumberland Coal Co., 45 Fed. 802; Groton Bridge & Manufacturing Co. v. American Bridge Co., 137 Fed. 284.

18 Tennessee Coal, Lumber & Tanbark Co. v. Waller, 37 Fed. 545; Connor v. Skagit Cumberland Coal Co., 45 Fed. 802; Whiteley Malleable Castings Co. v. Sterlingworth Railway Supply Co., 83 Fed. 853.

19 Gavin v. Vance, 33 Fed. 84; Donahue v. Calumet Fire Clay Co., 94 Fed. 23.

20 Lockhart v. Memphis & L. R. R. Co., 38 Fed. 274.

21 Richards v. Incorporated Town of Rock Rapids, 31 Fed. 505.

22 Stone v. Sargent, 129 Mass. 503.

23 Thorne v. Towanda Tanning Co., 15 Fed. 289.

24 Ibid.

held, a stipulation to plead and try the case at the next term,25 nor by defending upon a trial,26 nor by argument in opposition to an appeal from the order of removal,27 nor by appealing to a higher State court from an order refusing the removal.28 Where, in an action against a nonresident in a State court, its attorney was directed to appear solely for the purpose of removing the cause on the last day for answer, he filed a petition for removal with a bond; applied to the judge for an order of removal, and when, over objection, the court postponed the hearing on the application for a removal to the following week; the attorney believing it necessary to sustain his right to removal, and, for that purpose only, orally asked for and obtained an extension of time to plead; held that such application for time should be construed an an application for an extension of time to appear for the purpose of pleading to the jurisdiction or otherwise, and therefore did not constitute an appearance sufficient to confer jurisdiction.29 After the transcript has been filed, the case cannot be remanded by consent.30 It has been held by a State court that a removal may be withdrawn and the right waived by a notice to that effect, after the petition and bond have been filed, but before the transcript has been sent to the court of the United States.31

§ 538. Cases which are the subject of removal. The Judicial Code authorizes the removal of those cases of which the District Courts of the United States are given original jurisdiction thereby.1

A judicial proceeding, which is of such a character, owing to its procedure, that it could not be commenced in the Federal courts, can be removed when the controversy presents every ele

ment mentioned in the first section of the statute, namely: that it is a civil nature, at common law or in equity, which involves three thousand dollars, exclusive of interest and costs, and arises only between citizens of different States, or between citizens of the same State claiming land under grants of different States. When the requisite difference of citizenship exists and the matter in controversy exceeds the jurisdictional amount, an action commenced by attachment in the State court can be removed although the writ could not have originally issued from the Federal court.3 So may an action pending before a Nebraska justice of the peace. It is no objection to the removal that the case involves claims and defenses in both law and equity, which cannot be united in a suit in the Federal court.5

A proceeding not in a court of justice, but carried on by executive officers in the exercise of their proper functions, is considered as purely administrative in its character, and not in any just sense a suit; but an appeal from the decision in such a proceeding may become a suit, if made to a court or tribunal having power to determine questions of law and fact, either with or without a jury, and if there are parties litigant to contest the case on the one side and the other. The decision of a State court of last resort, that a special statutory proceeding is not a civil suit, does not control the Federal court on the question whether this may be removed."

It has been held: that a suit against an assignee for the bene fit of creditors, brought under the Ohio statute for an adjudication upon a claim against the estate, may be removed. That

2 Re Stutsman County, 88 Fed. 337, 342. See Wilson v. Smith, 66 Fed. 81. But see Anderson v. Sharp, 189 Fed. 247.

3 Crocker Nat. Bank v. Pengenstecher, 44 Fed. 705; Vermilya v. Brown, 65 Fed. 149; Long v. Long, 73 Fed. 369. Cf. Bentlif v. London & C. F. Corp. Ld., 44 Fed. 667; supra, 8.470.

4 Katz v. Herschel Mfg. Co., 150 Fed. 684.

5 Ketchum v. Black River Lumber Co., 4 Fed. 139; Tarver v. Ficklin, 60 Ga. 373.

6 Delaware C. Com'rs v. Diebold S. & L. Co., 133 U. S. 473, 33 L. ed. 674; Upshur County v. Rich, 135 U. S. 474, 477, 34 L. ed. 199, 200; per Bradley, J.

7 Re Jarneeke Ditch, 69 Fed. 161. 8 Claflin v. Robbins, Fed. Cas. No. 2,776 (1 Flip. 603).

a creditor's bill, brought under a State statute by one who is not a judgment creditor, to set aside a conveyance as fraudulent, or to reach and apply, in payment of a debt, property of a debtor, which cannot be attached or taken under execution in an action at law, and a suit against a partnership by the firm name, under a State statute which authorizes, in such case, judgment to be entered against the firm, enforceable against the partnership property and also that of such members as have . appeared or have been served with notice, cannot be removed.10

It has been said that, before a suit is pending in a State court, for the purposes of the removal act, it must be a suit within the meaning of the State law, and the mere filing of a petition of intervention, without the issue or service of notice or process of any kind,11 does not constitute a suit within the meaning of the law of Iowa.12 A suit or proceeding in which the value of the matter in dispute cannot be estimated in money is not removable.18

§ 538a. Removal of criminal proceedings. Except in cases arising under the civil rights acts, or where there is a defense under the revenue laws, or the defendant is an officer of a House of Congress, no criminal proceeding,1 nor proceeding in its nature criminal,2 can be removed. An action by a State or by a

9 First Nat. Bank v. Prager, C. C. A., 91 Fed. 689. See supra, §§ 82, 83.

10 Mathews Slate Co. v. Mathews, 148 Fed. 490. See supra, §§ 82, 83. 11 Ralya Market Co. v. Armour & Co., 102 Fed. 530.

12 Re Iowa & M. Const. Co., 6 Fed. 799.

13 Whitney v. Am. Shipbuilding Co., 197 Fed. 777, a suit to compel a corporation to exhibit its books to its stockholders. See supra, § 6.

§ 538a. 1 New Hampshire v. The Grand Trunk Railway, 3 Fed. 887.

2 Chicago, M. & St. P. Ry. Co. v. Iowa, 145 U. S. 632, 12 Sup. Ct. 978, 36 L. ed. 857; Iowa v. Chicago, B. & Q. R. Co., 3 L. R. A. 554, 37

Fed. 497; appeal dismissed; Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161; Texas v. Day, L. & C. Co., 41 Fed. 228; Dey et al., R. R. Com'rs v. Chicago, M. & St. P. R. Co., 45 Fed. 82; Indiana v. Alleghany Oil Co., 85 Fed. 870; Southern Ry. Co. v. State (Indiana), 72 N. E. 174. An early case holds that an action on a recognizance for good behavior is criminal in its nature and cannot be removed. Respublica v. Cobbett, 3 Dall. 467, 1 L. ed. 683; Chicago, M. & St. P. Ry. Co. v. Iowa, 145 U. S. 632, 12 Sup. Ct. 978, 36 L. ed. 857; Iowa v. Chicago, B. & Q. R. Co., 3 L. R. A. 554, 37 Fed. 497; Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161; Texas v.

3

4

public officer, to recover a penalty, is criminal, not civil, in its nature; and consequently cannot be removed; even, it has been held, where the State statute declares it to be a civil action, or where a count for the penalty is joined with another count for damages, or for an injunction; nor when any part of the penalty belongs to the State, although the suit is brought in the name of an informer, who receives the balance of the same; but where the penalty is imposed merely as punitive damages for the benefit of the individual plaintiff, the suit is removable." It has been held that an information in equity by a State Attorney-General to enjoin the violation of an anti-trust law,7 and a suit by a city to enjoin the transaction of business therein by a corporation which has failed to comply with a municipal ordinance imposing a license tax when the bill also prays for a decree for the amount of the tax together with a penalty, are not removable.

A suit by State Commissioners, to enjoin a railroad company from violating a State statute and their order concerning rates, was removed.9

10

The following cases have been held to be removable: a proceeding to punish a revenue collector for contempt of court; an action by the State to enjoin a Federal receiver from destroying a railroad; 11 a statutory summary proceeding by a landlord to eject a tenant; 12 an executory process in Louisiana to seize and sell a vessel under a mortgage; 13 a proceeding for

Day, L. & C. Co., 41 Fed. 228; Dey et al., R. R. Com'rs v. Chicago, M. & St. P. R. Co, 45 Fed 82.

3 Indiana v. Alleghany Oil Co., 85 Fed. 870.

4 City of Montgomery, Ala., v. Postal Tel.-Cable Co., 218 Fed. 471.

5 Texas v. D., L. & C. Co., 49 Fed. 593.

6 Gruetter v. Cumberland Tel. & T. Co., 181 Fed. 248; Younts v. Southwestern Tel. & T. Co., 192 Fed. 200. 7 Moloney v. Am. Tobacco Co., 72 Fed. 801.

8 City of Montgomery, Ala., v. Postal Tel.-Cable Co., 218 Fed. 475.

9 Missouri, K. & T. Ry. Co. of Kansas v. Hickman, 183 U. S. 53, 22 S. Ct. 18, 46 L. ed. 78; reversing judgment, Hickman v. Missouri, K. & T. Ry. Co. of Kansas, 52 S. W. 351, 151 Mo. 644; Hickman v. Missouri, K. & T. Ry. Co., 97 Fed. 113. 10 McCullough v. Large, 20 Fed. 309.

11 State v. Frost, 89 N. W. 915, 113 Wis. 623.

12 Gallatin v. Sherman, 77 Fed. 337.

13 W. G. Coyle & Co. v. Stern, C. C. A., 193 Fed. 582.