ordinarily, such a motion unaccompanied by a plea or affidavits is treated as a demurrer to the petition. Allegations of conclusions of law, such as that a specified defendant is only a nominal party, need not, it seems, be specifically denied.* It has been held that the allegations in a petition for a removal cannot be disputed, unless a plea in abatement is filed," which should be supported by the oath of the defendant or his agent; and that is the safer practice. But such a plea will not be decided by technical rules, and is sufficient if it sets out fairly and with sufficient certainty matters of fact, which, if true, negative the jurisdiction of the Federal court.8 The ordinary rule is that a formal plea is not indispensable, provided a traverse in some form is made by affidavits. A denial 3 Phillips v. Western Terra Cotta Co., 174 Fed. 873; Armstrong v. Kansas City Southern Ry. Co., 192 Fed. 608; Gibson v. Ches. & O. Ry. Co., C. C. A., 215 Fed. 24; Nelson v. Black Diamond Mining Co., 237 Fed. 264. 4 Mayer v. Denver, T. & Ft. W. R. Co., 41 Fed. 723. 5 Filer v. Levy, 17 Fed. 609. 6 Filer v. Levy, 17 Fed. 609; Lacroix v. Lyons, 27 Fed. 403. 7 Carson v. Dunham, 121 U. S. 421, 30 L. ed. 992; Clarkhuff v. Wis consin, I. & N. R. Co., 26 Fed. 465; Lacroix v. Lyons, 27 Fed. 403; Rum sey v. Call, 28 Fed. 769; McDonald v. Salem C. F. M. Co., 31 Fed. 577; Johnson v. Accident Ins. Co. of N. A., 35 Fed. 374; Imperial Refining Co. v. Wyman, 3 L. R. A. 503, 38 Fed. 574; Southern Pac. Co. V. Harrison, 73 Tex. 103, 11 S. W. 168. 8 Johnson v. Accident Ins. Co., 35 Fed. 374. A plea alleging that the court had no jurisdiction, or, if it had, that it ought not to exercise it, for the reason that the cause could be tried with greater convenience in the State court, was held So to be insufficient. Spies v. Chicago 9 Morris v. Gilmer, 129 U. S. 315, 32 L. ed. 690; Beadleston v. Har in the plaintiff's petition to remand has been held to be a sufficient traverse of an allegation in the defendant's petition for removal.10 It is the practice in the Western District of Kentucky to treat as traversed, without an express denial, allegations in a petition for removal that defendants were joined in fraud of the jurisdiction of the court for the sole purpose of preventing the removal.11 It is the custom in some districts to raise the issue by affidavits,12 A motion for leave to plead to the petition after a demurrer thereto has been overruled or a motion to remand denied may be refused for laches.13 § 555b. Repleader after removal. If the suit in the State court is in its nature an action at common law, and a pleading was duly served or filed before the removal, no repleader is necessary thereafter. When the suit is in its nature equitable, but the complaint follows the practice authorized by a State statute, it is the better practice for the plaintiff to replead in accordance with the Federal equity rules; although, if his pleading follows the usual form of a bill in equity, that will not be required. When, however, it does not, and the relief pending, 32 Fed. 644; Anderson v. Appleton, 32 Fed. 855; Curnow v. Phoenix Ins. Co., 44 Fed. 305. 10 Curnow v. Phoenix Ins. Co., 44 Fed. 305; Jones v. Casey-Hedges Co., 213 Fed. 43. 11 Boatner v. American Exp. Co., 122 Fed. 714. 12 Lewis v. Cincinnati, N. O. & T. P. Ry. Co., 192 Fed. 654; Jones v. Casey-Hedges Co., 213 Fed. 43. 18 Gibson v. Chesapeake & O. Ry. Co., C. C. A., 215 Fed. 24. Where more than five months after a motion to remand had been overruled and the case was at issue and ready for trial on the merits, it was held that a motion for leave to plead to the petition for removal was properly overruled. Hunter v. Illinois Cent. R. Co., C. C. A., 188 Fed. 645. § 555b. 1 Dart v. McKinney, Fed. Cas. No. 3,583 (9 Blatchf. 359); Merchant's & Manufacturers' Nat. Bank v. Wheeler, Fed. Cas. No. 9,439 (13 Blatchf. 218); Bills v. New Orleans, St. L. & C. R. Co.. Fed. Cas. No. 1,409 (13 Blatchf. 227); Contra, Martin v. Kanouse, Fed. Cas. No. 9,162 (1 Blatchf. 149); Brownell v. Gordon, Fed. Cas. No. 2,039 (1 McAll. 207); Whittenton Mfg. Co. v. Memphis & O. R. P. Co., 19 Fed. 273. It has been held that, whether or not a new declaration should be filed, is a question of practice and not a subject for error. Ætna Ins. Co. v. Weide, 9 Wall. 677, 19 L. ed. 810. 2 Gridley v. Westbrook, 23 How. 503, 16 L. ed. 412; Toucey v. Bowen, Fed. Cas. No. 14,107 (1 cannot be afforded, except on the equity side of the court, a repleader will be ordered.3 4 It has been held: that the Equity Rule concerning a stockholder's bill does not apply to a suit brought in a State court and subsequently removed; that where the State practice permits affirmative relief by an answer without a cross-bill, an answer seeking affirmative relief, filed before a removal, will be sufficient, and a cross-bill need not be filed in the Federal court; and that, in an action at law, a legal counter-claim, which might have been interposed in the State court, may be pleaded in the Court of the United States after the removal." When the suit in the State court united legal and equitable grounds of relief, or defense,8 as authorized by the State statute; it was ordered to be recast into two cases after the re 9 Biss. 81); Akerly v. Vilas, Fed. Cas. No. 120 (3 Biss. 332); Leo v. Union Pac. Ry. Co., 17 Fed. 273; Phelps v. Elliott, 26 Fed. 881, 883; Durgan v. Redding, 103 Fed. 914; Dancel v. United Shoe Machinery Co., 120 Fed. 839; Dillon on Removal of Causes, Fourth Edition, § 47, p. 76. Contra, Boston Belting Co. v. Judson, Fed. Cas. No. 1,674. But see Hodder v. Kentucky & G. E. Ry. Co., 7 Fed. 793; Thornton N. Motley Co. v. Detroit Steel & S. Co., 130 Fed. 396. 3 Whittenton Mfg. Co. v. Memphis & O. R. P. Co., 19 Fed. 273; Perkins V. Hendryx, 23 Fed. 418; Fletcher v. Burt, C. C. A., 126 Fed. 619; Thornton N. Motley Co. v. Detroit Steel & S. Co., 130 Fed. 396. 4 Earle v. Seattle L. S. & E. Ry. Co., 56 Fed. 909; Evans v. Union Pac. Ry. Co., 58 Fed. 497. But see Venner v. Great Northern Ry. Co., 153 Fed. 408, affirmed on question of jurisdiction, 209 U. S. 24, 52 L. ed. 666; Hitchings v. Cobalt Central Mines Co., 189 Fed. 241; supra, $ 145. 5 Detroit v. Detroit City Ry. Co., 55 Fed. 569, 575. 6 Frank v. Chetwood, Fed. Cas. No. 5,051. See Partridge v. Phoenix Life Ins. Co., 15 Wall. 573,. 21 L. ed. 229 (a case of set-off). 7 Hurt v. Hollingsworth, 100 U. S. 100, 25 L. ed. 569; Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,829 (8 Blatchf. 299); La Mothe Mfg. Co. v. National T. Works Co., 15 Blatchf. 432; Whittenton Mfg. Co. v. Memphis & O. R. Packet Co., 19 Fed. 273; Perkins v. Hendryx, 23 Fed. 418; Pilla v. German School Ass'n, 23 Fed. 700; appeal dismissed, 131 U. S. 443, 9 Sup. Ct. 801, 33 L. ed. 216; Phelps v. Elliott, 26 Fed. 881 (23 Blatchf. 470); Lacroix V. Lyons, 27 Fed. 403; Schneider v. Foote, 27 Fed. 581 (23 Blatchf. 511); City of Knoxville v. Southern Paving Const. Co., 220 Fed. 236. 8 Northern Pac. R. Co. v. Paine, 119 U. S. 561, 7 Sup. Ct. 323, 30 L. ed. 513; Hodder v. Kentucky & G. E. Ry. Co., 7 Fed. 593. 9 Wright v. Kentucky & G. E. moval. In such cases, a repleader was necessary.1 10 Where, after the removal of a bill in equity, a declaration was filed in the Federal court asking relief at law against some, but not all, of the defendants, which was within the allegations of the original complaint; it was held that it should not be stricken from the files, nor should the complainants be compelled to elect whether to proceed at law or in equity." A failure to replead, however, does not make the judgment or decree void.12 When, by the repleader, the case is thus divided into an action at law and a suit in equity, neither of them is considered to constitute a new suit; but each is treated as a continuation of that which was removed; and, for a defect in jurisdiction, the whole cause will be remanded instead of dismissed.13 Where, after the removal of a case with a complaint praying both damages and equitable relief, a bill in equity therein for the equitable relief was filed and heard; it was held that the action at law was not abandoned by the repleader, but remained on the common-law side of the court.1 14 The necessity of a repleader may be raised by a motion for a repleader, 15 or by a demurrer.16 But, if these grounds of objection are not specified, a demurrer to a complaint, which follows the State practice, will, after a removal, be overruled, Ry. Co., 117 U. S. 72, 6 Sup. Ct. 697, 29 L. ed. 821; Re Foley, 76 Fed. 390; Pettus v. Smith, 117 Fed. 967. 10 Hurt v. Hollingsworth, 100 U. S. 100, 25 L. ed. 569; La Mothe Mfg. Co. v. National Tube Works Co., Fed. Cas. No. 8,033; Lacroix v. Lyons, 27 Fed. 403; Pettus v. Smith, 117 Fed. 967. 11 Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,829, 8 Blatchf. 299. Cf. $368, supra. 12 Hatcher v. Hendrie & B. Mfg. & Supply Co., C. C. A., 133 Fed. 267, 272. 13 Utah-Nevada Co. v. De Lamar, 145 Fed. 505. Where, after the removal of an action at law upon an insurance policy, the Federal court sustained a demurrer and granted leave to the plaintiffs to file a bill in equity for a reformation of the contract and continued the action at law pending the proceedings in equity; it was held that this order, although made six months after the loss occurred, was not contrary to the provision of the policy, that no action could be maintained unless brought within such period. Rosenbaum v. Council Bluffs Ins. Co., 37 Fed. 7, 3 L. R. A. 189. 14 Schneider v. Foote, 27 Fed. 581 (23 Blatchf. 511). 15 Whittenton Mfg. Co. v. Memphis & O. R. P. Co., 19 Fed. 273. 16 Benedict v. Williams, 11 Fed. 547; Perkins v. Hendryx, 23 Fed. 418. when the complaint states in substance facts which entitle the complainant to relief in equity; although it omits the statement of citizenship, and the prayer for relief, which are required by the Federal equity rules.17 If no repleader was had, so much of the pleadings as present matters not cognizable on that side of the court to which the case was removed were stricken out or disregarded, without prejudice to its presentation in a new suit.18 § 555c. Amendment of pleadings after removal. The right to amend after a removal is determined by the Federal and not by the State statutes.1 After removal, plaintiff may amend his declaration by inserting new counts, for the same cause of action as that contained in the original counts. He may amend so that the citizenship of the party and the value of the matter in dispute shall appear upon the face of the proceedings. It has been held: that he may change the original cause of action into another, such as one assigned by a citizen of the same State as the plaintiff, which could not have been originally brought in the Federal court; that, where the bill as originally filed did not state a case within the jurisdiction of the State court, it could not, subsequent to its removal, be amended; but that, where the plaintiff's original pleading stated a case within the jurisdiction of the State court, and failed to allege facts sufficient to constitute a cause of action, and after a removal the service of the summons was set aside, the Federal court might permit the plaintiff to file an amended petition; and that a new summons might issue under the same. It has been held: that a 17 Dancel V. United Shoe Machinery Co., 120 Fed. 839. 18 No. Pac. R. Co. Paine, 119 U. S. 561, 563, 30 L. ed. 513, La Mothe Mfg. Co. v. Nat. T. Works Co, 15 Blatchf. 432; Perkins v. Hendryx, 23 Fed. 418; Phelps v. Elliott, 26 Fed. 881; Lacroix v. Lyons, 27 Fed. 403. § 555c. 1 Salyer v. Consolidation Coal Co., C. C. A., 246 Fed. 794. See supra, § 546. 5 2 West v. Smith, 101 U. S. 263, 25 L. ed. 809. 3 Ostrander v. Blandin, 211 Fed. 733. 4 Green v. Custard, 23 How. 484, 16 L. ed. 471. 5 Adams v. Heckscher, 80 Fed. 742. 6 United States Fidelity & Guar anty Co. v. Board of Com'rs of Woodson County, C. C. A., 145 Fed. 144. |