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prejudice, or some other final disposition thereof made, which is not upon the merits, a new suit may be brought in the State court upon the same cause of action for the same amount,45 or for a less sum, which is below the jurisdictional amount; 46 but the same case cannot be prosecuted in the State court.47

Leave to discontinue may be denied or conditioned by a stipulation that the plaintiff will not bring another suit for the same cause of action against the defendant in any court.48

Where a new suit for the same cause of action was begun in the State court after the removal and before the disposition of the former case; it was held that a plea 9 of lis pendens should be sustained.

It has been held that, when a criminal prosecution has after its removal been dismissed by the Federal court for want of jurisdiction, the State court has power to declare a forfeiture of a recognizance; 50 but that, when a receiver was appointed by the Federal court after a removal and the case subsequently dismissed for want of jurisdiction, his bond could not be enforced in the State court.51

Upon the remand of a case, the State court takes complete jurisdiction thereof.52 The better practice is to present to the

(Texas), 63 S. W. 134. Contra, Baltimore & O. R. Co. v. Fulton, 53 N. E. 265, 59 Ohio St. 575.

44 Swift & Co. v. Hoblawetz (Kansas), 61 Pac. 969. Contra, Baltimore & O. R. Co. v. Fulton, 53 N. E. 265, 59 Ohio St. 575.

45 Southern Ry. Co. v. Miller, 217 U. S. 309; affirming 59 S. E. 1115; Gassman v. Jarvis, 100 Fed. 146. Contra, Cox v. Railroad Co., 68 Ga. 446; Railroad Co. v. Fulton, 59 Ohio St. 575, 53 N. E. 265.

46 Texas Cotton Products Co. v. Starnes, 128 Fed. 183; affirmed, C. C. A., 133 Fed. 1022; Young v. So. Bell Tel. & Tel. Co., 75 S. C. 326; Hooper v. Atlanta, K. & N. Ry. Co., 106 Tenn. 28, 60 S. W. 607.

47 Stephenson's Adm'r v. Illinois

Cent. R. Co., 75 S. W. 260, 25 Ky. Law Rep. 442; Texas & P. Ry. Co. v. Huber (Texas), 95 S. W. 568. Contra, Seeligson's Ex'rs v. Texas Transp. Co., 70 Tex. 198, 7 S. W. 708.

48 Palmer v. Delaware, L. & W. R. Co., 222 Fed. 461.

49 Hollingsworth v. Southern Ry. Co., 57 S. C. 453, 35 S. E. 739.

50 Hunter v. Colquitt, 73 Ga. 44. 51 Early v. Beecher, 75 Tenn. (7 Lea) 256. See Doane v. Corbin, 44 Ill. App. 463.

52 Birdseye v. Shaeffer, 37 Fed. 821; writ of error dismissed, Birdseye v. Nickerson, 140 U. S. 672, 11 Sup. Ct. 1017, 35 L. ed. 403; Thacher v. McWilliams, 47 Ga. 306; Germania Fire Ins. Co. v. Francis,

State court a certified copy of the order of the Federal court remanding the cause.53 The fact that an appeal, which is not accompanied by a supersedeas, has been taken from the order of remand, does not prevent the State court from assuming jurisdiction.54 It has been held that a subsequent order of the Federal court revoking the remand does not divest the State court of jurisdiction.55

After a remand, a second removal upon the same ground has been denied, although defects in the petition had been corrected so as to show the jurisdiction.56

The State court has power to determine whether to recognize pleadings that are filed in the Federal court,57 or testimony,58 or other proceedings there taken before the remand.59

52 Miss. 457, 24 Am. Rep. 674; Jackson v. Alabama Great Southern R. Co., 58 Miss. 648; Johnson v. Gelston, 3 N. J. Law (2 Penning.) 668; Knahtla v. Oregon Short Line & U. N. Ry. Co., 21 Or. 136, 27 Pac. 91; Kleiber v. McManus, 66 Tex. 48, 17 S. W. 249.

53 Seeligson's Ex'rs V. Texas Transp. Co., 70 Tex. 198, 7 S. W. 708.

54 Stommel v. Timbrel, 84 Iowa 336, 51 N. W. 159.

55 Chisholm v. Propeller Tow-Boat Co. of Savannah (South Carolina), 38 S. E. 156. When the Federal court has set aside its order of remand at the term when the same was made, and meanwhile plaintiff had filed a copy of the first order with the State court and obtained a judgment there, which was affirmed on appeal by the Supreme Court of the State; it was held that a motion by the plaintiff, in the Federal court, to strike the cause from its docket would not be decided until the defendant had an opportunity to bring the judgment of the State court before the Supreme Court of the United States

for review. Empire Min. Co. v. Propeller Tow-Boat Co., 108 Fed. 900.

56 St. Paul & C. R. Co. v. McLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. ed. 703; affirming McLean v. St. Paul & C. Ry. Co., Fed. Cas. No. 8,893 (17 Blatchf. 363); Johnston v. Donvan, 30 Fed. 395; Brigham v. C. C. Thompson Lumber Co., 55 Fed. 881; Frisbie v. Chesapeake & O. R. Co., 59 Fed. 369; Smith v. Travelers' Ins. Co., 73 Fed. 513; Bodley v. Emporia Nat. Bank, 38 Kan. 59, 16 Pac. 88; Nichols v. Stevens, 123 Mo. 96, 27 S. W. 613, 45 Am. St. Rep. 514; affirming 123 Mo. 96, 25 S. W. 578, 45 Am. St. Rep. 514. See Gerner v. Mosher (Nebraska), 78 N. W. 384; Michigan Stove Co. V. Waco Hardware Co., 54 S. W. 357, 22 Tex. Civ. App. 293. Contra, Freeman v. Butler, 39 Fed. 1.

57 Ayres v. Wiswall, 112 U. S. 187, 193, 28 L. ed. 693, 695.

58 Ayres v. Wiswall, 112 U. S. 187, 193, 28 L. ed. 693, 695; Broadway Ins. Co. v. Chicago G. W. Ry. Co., 101 Fed. 507, 510.

59 Doane v. Corbin, 44 Ill. App. 463.

§ 555. Proceedings in Federal court after removal. "The said copy being entered within said thirty days as aforesaid in said District Court of the United States, the parties so removing the said cause shall, within thirty days thereafter, plead, answer, or demur to the declaration of complaint in said cause, and the cause shall then proceed in the same manner as if it had been originally commenced in the said District Court." 1

"When any suit shall be removed from a State court to a District Court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed."' 2

Except, in cases arising under the Constitution or laws or a treaty of the United States, the Federal court only acquires such jurisdiction over the parties as the State court had. After

§ 555. 1 Jud. Code § 29, 36 St. at L. 1087, re-enacting, 18 St. at L. 470, 86; 25 St. at L. ch. 433.

2 Ibid. § 36, re-enacting, 18 St. at L. 470, § 4. Dwyer, J.: "The provisions of sections 4 and 6 of the act of March 3, 1875, point to all such proceedings and orders as have relation to the prosecution and defense of the suit in due course and the ultimate results aimed at in the litigation." Kirk v. Milwaukee DustCollector Mfg. Co., 26 Fed. 501, 507.

3 Kelly v. Virginia Protection Ins. Co., Fed. Cas. No. 7,677 (3 Hughes

449); Goldstein v. City of New Or leans, 38 Fed. 626. It has been held that the Federal court can take no jurisdiction in a suit brought in a State court under the Federal Interstate Commerce law, which has been removed because of a difference of citizenship. Swift v. Philadelphia & R. R. Co., 58 Fed. 858.

4 Simpkins v. Lake Shore & M. S. R. R., 19 Fed. 802, 21 Blatchf. 554 (holding that, where the nonresidence of the plaintiff was disputed, that question should not be disputed by a motion upon affida

the removal, the case can be dismissed for a defect in the service of process; 5 even, it has been held, when the time allowed by the State practice for such objection has expired," provided that the objection is duly raised."

The joinder in the petition with another defendant, who has been duly served, is not a submission to the jurisdiction. It is the safer practice to reserve the objection in the petition for a removal.9

State decisions in other cases upon the validity of service of process do not bind the Federal courts.10 Where a motion to set aside the service of process had been previously made and denied in the State court, it was held that the Federal court must follow such decision.11 Service by attachment,12 and substituted service, and service by publication, 18 when made or begun 14 in accordance with the State statutes will be respected by the Federal court if the statutes are constitutional.15

By a recent amendment to the Judicial Code: "Hereafter, in all cases removed from any State court to any United States court for trial in which any one or more of the defendants has not been served with process or in which the same has not been perfected prior to such removal, or in which the process served upon the defendant or defendants, or any of them, proves to be defective, such process may be completed by the United States

vits, but should be reserved until the trial of the action); Goldstein v. City of New Orleans, 38 Fed. 626. 5 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517; Wabash W. R. v. Brow, 164 U. S. 271, 41 L. ed. 431; Nat. Acc. Ass'n v. Spiro, 164 U. S. 281, 41 L. ed. 435; Remington v. Central Pac. R. R. Co., 198 U. S. 95, 49 L. ed. 959; Mecke v. Valley Town Mineral Co., 81 Fed. 114. But see Nickels v. Pullman Co., 268 Fed. 610.

6 Greenleaf v. National Ass'n, 130 Fed. 209; Cleveland & Western Coal Co. v. J. H. Hillman & Sons Co., 245 Fed. 200.

7 Tex. & Pac. Ry. v. Bigger, 239 U. S. 330.

8 Garvey v. Compania Metalurgica Mexicana, 222 Fed. 732, 736.

9 Tex. & Pac. Ry. v. Bigger, 239 U. S. 330.

10 Mechanical Appliance Co. V. Castleman, 215. U. S. 437, 54 L. ed. 272; Feister v. Hulick, 228 Fed. 821; Vitkus v. Clyde S. S. Co., 232 Fed. 288; Hudson Nav. Co. v. Murray, 236 Fed. 419. See supra, § 164. 11 Hoyt v. Ogden Portland Cement Co., 185 Fed. 889.

12 Clark v. Wells, 203 U. S. 164, 171, 27 Sup. Ct. 43, 51 L. ed. 138.

13 Hudson Nav. Co. v. Murray, 236 Fed. 419.

14 Ibid.

15 Supra, see § 164d.

court through its officers, or new process as to defendants upon whom process has not been completed may be issued out of said United States court, or service may be perfected in such court in the same manner as in cases which are originally filed in the United States court: Provided, Nothing in this Act shall be construed to deprive any defendant upon whom process is so served after removal, of his right to move to remand the cause in the State court, the same as if process had been served upon him prior to such removal." 16

After removal, the case may be dismissed because the State court has no jurisdiction of the subject matter.17

A removal is a waiver of the objection that the suit was brought in the wrong county of the State.18 A general appearance or the filing of an answer, subsequent to the removal, waives an objection to the service of process, 19 unless that objection has been previously raised; 20 but it has been held that a motion, after the removal, to require plaintiff to give security for costs does not; 21 and that a defendant, after removal, can plead a defense based upon a Federal statute, which the State court could not have entertained.22

Where one of two cognate suits has been removed, the remover waived his right to have them consolidated,23 or to compel the plaintiff to elect between them.24 It has been held that he also waived his right to object to the splitting and division between them of a single cause of action.25

It has been said that the jurisdiction of the Federal court, after a removal, dates back to the time of the original service of process; 26 and that the objection that a defendant, who

16 Act of April 16, 1920, 41 St. at L., Comp. St. § 1021a.

17 Philadelphia & Reading Ry. Co. v. Sherman, C. C. A., 230 Fed. 814. 18 Hinds v. Keith, 57 Fed. 10, 6 C. C. A. 231, 13 U. S. App. 222, 314. 19 Tex. & Pac. Ry. v. Hill, 237 U. S. 208; Callahan v. Hicks, 90 Fed. 539.

20 Mecke v. Valley Town Mineral Co., 89 Fed. 114; Hoyt v. Ogden

Portland Cement Co., 185 Fed. 889. 21 Peterson v. Morris, 98 Fed. 48. 22 Lehigh Val. R. Co. v. Rainey, 99 Fed. 596.

23 Land v. Ferro-Concrete Const. Co., 221 Fed. 433.

24 Ibid.

25 Ibid.

26 Owens v. Ohio Cent. R. Co., 20 Fed. 10.

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