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§ 93 j. Suits not removable.—A suit will not be removed unless the circuit court has jurisdiction of the subject matter, and the power to do substantial justice between the parties; nor is a suit removable which could not have been brought in the circuit court by original process. If the circuit court has no jurisdiction over a sin. gle count of the declaration, the case cannot be removed. 3 A case of condemnation of property is not removable where the State law vests title in a municipal corporation, and provides for the assessment of damages.* Ancillary suits are not removable. A bill filed to vacate a judgment cannot be removed. Illegality of the final process of a State court is not such a suit as may be removed,? or if an intervenor seeks to have the question of title determined under an execution issued out of a State court;8 or where a stranger seeks to enjoin the sale of property under execution;9 or a foreign citizen seeks to enjoin the execution. 10 A merely ancillary proceeding by a third person, to enjoin a seizure and sale under a judg. ment, is not removable;ll so the claim of a garnishee is ancillary, and not removable. 19 A petition merely ancillary to an ejectment suit already passed to judgment is not removable. 13 If a counter-claim is filed in a suit against the citizen of the State where suit is brought, it cannot be removed. 14 The fact that a cross-bill has been filed, setting up the same matters put in issue by the original bill and answer, cannot affect the jurisdiction, as it is but a mere appendage to the original bil115 — a mere auxiliary to the original bill;16 a defense in the suit, 17 constituting, with the orignal bill, but one suit. 18 A bill to establish a resulting trust on land cannot be removed unless the mortgagor is a citizen of the same State as the plaintiff. 19 A foreclosure suit is not removable on the application of a subsequent encumbrancer. 20

An application for mandamus is not an action or suit within the removal acts;21 nor is an application for a writ

habeas corpus. A suit instituted by the attorney general of a State, in relation to a state charity, is in effect a suit by the State and not removable.23 So an action by a State to recover taxes levied against the property of a corporation, organiz-d under its laws, cannot be removed to a Federal court. A board of county commissioners of a

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county, created by the laws of the State of Nebraska, is in no just or proper sense a court, within the meaning of the Removal Act of Congress; and a mere claim against a county for right of way for a public road, while the same is pending before the county board, does not constitute a suit within the meaning of the said removal acts.25 An action to review the judgment of a State court is not one of which the Federal court has original jurisdiction; and, therefore, such action is not removable from the State to the Federal court. 26 An action for an injunction to restrain a seizure and sale in the course of an execution on a judgment is not removable. 27 A cause arising upon a petition for an injunction to stay proceedings in a State court cannot be removed by the party who brought the suit, before the injunction is granted. 28 A suit for divorce, defendant denying the allegation of marriage set out in the bill, is not removable. 29

1 Rogers v. Rogers, 1 Paige, 183.

2 Watson v. Boudurant, 30 La. An. 1; Denniston v. Potts, 19 Miss. 36; Goodrich v. Hunton, 29 La. An. 372. Contra: Bliven v. New England Screw Co., 2 Blatchf. 112.

3 Gale v. Babcock, 4 Wash. C. C. 344. 4 White v. The City, 8 Phila. 211.

5 Ranlett v. Collier White Lead Co., 30 La. An. pt. 1, 56; Goodrich v. Hunton, 29 La. An. 372; Claflin v. McDermott, 12 Fed Rep. 375; The Cortes Co. v. Thannhauser, 9 Fed. Rep. 226.

6 Barrow v. Hunton, 99 U. S. 89; Goodrich v. Hunton, 29 La. An. 372; Ranlett v. Collier White Lead Co., 30 La. An. pt. 1, 56.

7 Besser v. Munford, 63 Ca. 446.
8 Bank v. Turnbull, 16 Wall. 190; Harrison v. Shorter, 59 Ga. 512.

9 Watson v. Boudurant, 30 La. An. 1; but see S. C., 2 Wood, 166. 10 Goodrich v. Hunton, 29 La. An. 372; Rogers v. Rogers, 1 Paige, 183: Nye v. Nightingale, 6 R. I. 439.

11 Watson v. Boudurant, 30 La. An. 1. 12 Weeks v. Billings, 5) N. II. 371; Pratt v. Albright, 9 Fed. Rep. 636. 13 Chapman v. Barger, 4 Dill. 557. 14 West v. Aurora, 6 Wall. 139. 15 Donohoe v. Mariposa Land & M. Co., 6 Cent. L. J. 487, 5 Sawy. 163.

16 Rubber Co. v. Goodyear, 9 Wall. 809; Cross v. Del Valle, 1 Wall. 5; Field v. Schieffelin, 7 Johns. Ch. 252.

17 Gallatin v. Irwin, Hopk. Ch. 59. 18 Ayer v. Carver, 17 Huw. 595; Slason v. Wright, 14 Vt. 210. 19 Chester v. Chester, 7 Fed. Rep. 1. 20 Donohoe v. Mariposa L. & M. Co , 6 Cent. L. J. 437, 5 Sawy. 153. 21 Rosenbaum v. Supervisors, 28 Fed. Rep. 223.

22 Kurtz v. Moffit, 115 U, S. 487. 23 Grinnell v. Johnson, 28 Fed. Rep. 2. 24 People v. Southern Pac. R. R. Co., 65 Cal. 553. 25 Fuller v. Colfax County, 14 Fed. Rep. 1.7. 23 Jacson v. Gould, 74 Me. 564; Edwards Mfg. Co. v. Sprague, 76 Me. 53.

27 Ralston v. British & A. M. Co., 37 La. An. 153. 23 Lawrence v. Morgan's La. & Tex. R. & Steamship Co., 121 U. S. 634; Edwards Mfg. C v. Sprague, 76 Me. 69.

29 Bowman v. Bowman, 30 Fed. Rep. 849.

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§ 93 k. Restriction of right by amount in controversy under Rev. Stats. Sec. 639.-If the value is only five hundred dollars, the cause cannot be removed. The right depends on facts existing when suit was instituted;- yet, if defendant makes the amount more when he files the petition, it may be removed. The affidavit of the petitioner is not conclusive.* An action for damages may be removed although the damages are uncertain;5 The sum claimed as damages in the declaration is the amount in dispute, until otherwise shown; but the presumption is not conclusive;? so in assumpsit. In actions on tort the damages laid constitute the amount.' Where the practice is not to file the declaration until after the return of the writ, the ad damnum in the writ is the prima facie sum claimed, 10 unless the declaration is inserted in the writ.!! If the declaration and the ad damnum vary, the State court may institute an inquiry as to the true amount. 12

On attachment, it must appear that the suit presents a claim exceeding five hundred dollars damages.

So as to the value of a right which a corporation is restrained from entering upon. “In dispute” refers to the matter in dispute, though the claim be incapable of proof, or be only in part well founded. 15 The amount must be affirmatively shown. 16 It is sufficient that it exceeds five hundied dollars at the time the removal is applied for, and interest may be regarded in determining

Where the right of removal has become complete, it cannot be defeated by release, amendment, or declaring for a less sum; nor will release of part of a demand oust jurisdiction of the Federal court; or reduction of amount of claim after removal deprive defendant of his rights.20 If action is brought for less than, and the answer pleads

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counter-claim exceeding, five hundred dollars, defendant is entitled to remove the whole suit. 21 The right of creditors to come in and have claims allowed is a mere incident over which the court will necessarily exer«:ise jurisdiction 22 Costs are not recoverable when the amount is less than five hundred dollars. 23

1 Ladd v. Tudor, 3 Wood. & M. 325; West. U. Tel. Co. v. Levi, 47 Ind. 552.

2 Roberts v. Nelson, 8 Blatchf. 74. 3 McGinnity v. White, 3 Dill. 350. 4 Rush v. Cobbett, 2 Yeates, 275.

5 Muns v. Dupont, 2 Wash. C. C. 463. Contra: Rush v. Cobbett, 2 Yeates, 275.

6 Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 How. 198 Desbrow v. Driggs, 8 Abb. Pr. 305, note. Contra: Rush v. Cobbett, 2 Yeates, 275.

7 Ladd v. Tudor, 3 Wood. & M. 323; People v. The Judges, 2 Denio, 197; Culver v. Crawford Co., 4 Dill. 239.

8 People v. The Julges, 2 Denio, 137.

9 Hulscamp v. Teel, 2 Dall. 333; Gordon v. Longest, 15 Peters, 97; Western U. Tel. Co. v. Levi, 47 Ind. 552.

10 Muns v. Dupont, 2 Wash. C. C. 453; Ladd v. Tudor, 3 Wood. & M. 325.

11 Ladd v. Tudor, 3 Wood. & M. 325. 12 Ladd v. Tudor, 3 Wood. & M. 325. 13 Keith v. Levi, 2 Fed. Rep. 743. 14 Hatch v. Chicago, R. I. & P. R. Co., 6 Blatchf. 165. 15 Kanouse v. Martin, 15 How. 193. 16 Keith v. Levi, 2 Fed. Rep. 743. 17 McGinnity v. White, 3 Dill. 33); Bank of U. S. v. Daniel, 12 Peters, 32; Merrill v. Petty, 16 Wall. 338; Clarkson v. Manson, 4 Fed. Rep. 227.

18 Kanouse v. Martin, 15 How. 198; Gree: v. Custard, 23 How. 484; Roberts v. Nelson, 8 Blatchf. 74; Wright v. Wells, 1 Peters C. C. 220. Contra, Maine v. Gilman, 10 Fed. Rep. 214.

19 Wright v. Wells, 1 Peters, 22); Gordon v. Longest, 16 Peters, 97; Roberts v. Nelson, 8 Blatchf. 74.

20 Roberts v. Nelson, 8 Blatchf. 74; Zinckersen v. Hufschmidt, 1 Cent. L. J. 144.

21 Clarkson v. Manson, 4 Fed. Rep. 227. See Aurora v. West, 6 Wall. 139; S. C., 25 Ind. 48. Contra: Falls Wire Manuf. Co. v. Broderick, 6 Fed. Rep. 654.

22 N. Y. Silk Manuf. Co. v. Second Nat. Bank, 10 Fed. Rep. 204. 23 Brooks v. Phoenix Ins. Co., 16 Blatchf. 182.

$ 93 1. By amount in controversy,under act of 1875.-The claim of the plaintiff, and not the counter-claim of the defendant, should fix the amount in dispute;' and the petition should affirmatively state the amount;, and if the amount in dispute exceeds $500, exclusive of costs, at the time of the application, the case is removable, although the requisite amount did not exist when the suit was commenced. The amount claimed in the body of the complaint must be looked into, and not alone the frayer for judgment;t for where the claim is for an amount not fixed, and which can be ascertained only by trial, plaintiff may lay damages at any amount. The jurisdictional limitation as 10 tue amount in controversy has reference to the sum in dispute between the plaintiff and the defendant.6 Where a counter-claim was interposed claiming damages for fraudulent representations in regard to the subject matter, to an amount more than $500 in excess of plaintiff's claim, the suit is removable. If the amount claimed is over five hundred dollars, the State court cannot permit the plaintift to reduce below that amount after defendant has filed a petition and complied with the requirements of law. In order to a removal, the sum in dispute, exclusive of costs, must, under the Act of 1867, have exceeded $500, when the suit was begun in the State court;' though, under the Act of 1875, it is sufficient if it exceede l that sum at the time of application for removal. 10 It is sufficient to give jurisdiction that the amount appear in the petition. 11 In actions for tort, the amount claimed as damages is the criterion in application for removal, and it is of no consequence what the value of the property destroyed or injured was. 12 In a suit to restrain the maintenance of an awning, the value of the right to maintain the awning is the amount in dispute. 13

In an action in tort, where more than $500 damages is claimed, plaintiff cannot defeat defendant's right to a renjoval l`y an amendment reducing the amount of the claim, after the petition and bond for removal have been filed. 14 Where $940 in State coupons were tendered in payment of taxes and refused, and the tax collector attached a suin less than $500, it was held that the attachment proceedings involved more than $500, so as to make it removable.15 The allowance of alimony is discretionary and the amount uncertain; and, hence, a suit for alimony against a man worth $10,000 cannot be said to be a suit for a sum exceeding the jurisdictional amount. 16 Where plaintiff sues on behalf of himself and all others similarly situated who may become

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