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PART III.

JURISDICTION OBTAINED BY REMOVAL

OF CAUSE.

CHAPTER V.

THE RIGHT OF REMOVAL.

CHAPTER VI.

REMOVAL UNDER ACT OF 1887-1888.

CHAPTER VII.

REMOVALS IN SPECIAL CASES.

CHAPTER VIII.

PROCEEDINGS TO OBTAIN REMOVAL OF CAUSE.

CHAPTER IX.

EFFECT OF REMOVAL OR REMAND

(171)

CHAPTER V.

THE RIGHT OF REMOVAL,

$ 93.

Implied power of Congress to provide for removal of causes

from State courts. $ 93 a. Right conferred by Congress. $ 93 b. Not a rested right. § 93 c. Its exercise cannot be prevented by State legislation. $ 93 d. The right not waived by proceedings in State court. $ 93 e. Restriction on exercise of right by Act of Congress of 1887-8. § 93 f. Suits removable. § 93 g. Proceedings in the nature of suits, are removable. $ 93 h. Probate proceedings. $ 93 i. Special proceedings. § 93 j. Suits not removable. $ 93 k. Restriction of right by anoun: in controversy under Rev. Stats.

sec. 633.

$ 93 1. By amount in controversy under Act of 1875. § 93 m. Amount in controversy, under Act of 1837, $2000 exclusive of

interest and costs. § 93 n. Amount in controversy under right of set-off. § 93 o. Removal into circuit courts of newly admitted States.

§ 93. Implied power of Congress to provide for removal of causes from State courts.—Congress shall have power to constitute tribunals inferior to the Supreme Court. (U. S. Const. art. 1, sec. 8, cl. 9.) And to make all laws necessary and proper to carry out its powers. (Id. cl. 18.)

§ 93 a. Right, conferred by Congress. — The right to a removal of the cause is a right conferred directly by Congress, and does not depend on the action of the State court, which can neither confer it nor take it away.3 If the right has once become perfect, it cannot be taken away by subsequent amendment2 either in the State or Federal court, by release of part of the claim,or other

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wise.A party loses none of his rights to insist upon a removal of the cause by his voluntary appearance;6 if he appears and obtains time to answer, and gives notice of a motion to dismiss a temporary injunction, it is not a waiv. er of the right.? A party brought into a State court by an order to interplead, may, on motion of the original defendant, if otherwise qualified, remove the cause. A party is not precluded by the acts of an attorney appointed for him by the court in his absence. A party failing to obtain a removal loses none of his rights by contesting the suit on its merits. 10 Such contesting is not a waiver of his rights.11 The right to a removal may be waived, 12 as by agreement, by direct consent, or by non-exercise of the right;13 as by consenting to a reference, 14 or by stipulation, or any conduct equivalent to a waiver. 15

The right under Revised Statutes, sec. 639, attaches in every case (1) where the controversy is between citizens of different States; (2) where the matter in dispute exceeds $500, exclusive of costs; (3) under the Act of 1867, the citizen of such other State must file the required affidavit as to local prejudice; and (4) he must give the required security for his appear

It must appear that the contest in the suit is be. tween citizens of different States.17 The right depends on the citizenship of the persons who are parties to the record, although others have an interest in the suit, 18 foreign citizenship or alienage. 19 Under the Act of 1866 the suit must be brought by a citizen of the State in which it is pending;20 for if brought by a citizen of another State, or an alien, it cannot be removed;?I and taking out letters of administration will not make him a citizen;22 and if defendant was a citizer at the commencement of the suit, he cannot, by becoming a citizen of another State, acquire the right to remove. This section has no reference to a case where one of the defendants is an alien, and the others are citizens of another State, and none, or none served, are citizens of the State where suit is brought. 24 Under the Act of 1866 a plaintiff has no right to remove the cause;25 the right is confined to the alien or non-resident defendant;26 it applies only where there are two defendants, one of whom is a citizen of another State or an alien. 27 If a defendant is sued jointly with

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