§ 105. Removal proceedings-Petition, when filed. That whenever any party entitled to remove any suit mentioned in the next preceding section, except in such cases as are provided for in the last clause of said section, may desire to remove such suit from a State court to the circuit court of the United States; he may make and file a petition in such suit in such State court at the time, or any time before the defendant is required by the laws of the State or the rule of the State court in which such suit is brought, to answer or plead to the declaration or complaint of the plaintiff, for the removal of such suit into the circuit court to be held in the district where such suit is pending. (Clause 1 of sec. 3 of the Act of March 3, 1875; as amended by Act of March 3, 1887, 24 U. S. Stats. 552; as corrected by Act of Aug. 13, 1888, 25 U. S. Stats. 435.) § 105 a. Act construed.-The second section of the Act of 1875, as to the right of removal of causes, is jurisdictional, and sec. 3 is but modal and formal. The conditions of sec. 2 are indispensable, and must be shown by the record; the directions of sec. 3, relating to petition and bond, although obligatory, may to a certain extent be waived. The time within which a removal must be applied for is not jurisdictional but modal and formal, and may, though obligatory to a certain extent, be waived. 2 That a petition is not verified by oath, or is filed too late, may be waived by delaying objection. The right of removal is not defeated if the petition therefor is filed after motion made, the decision of which does not affect the merits of the controversy. Where the docketing of the cause was irregular under the State statute, such docketing, though under a rule of court, could not have the effect of a rule to answer, so as to preclude defendant's motion to remove to the Federal court at a subsequent day of the same term. The right to object to being sued in any other 4 3 district than that of his residence being personal to the defendant, he may waive it, and consequently his residence within the district is not essential to jurisdiction in case of a removal by him from the State court. The Judiciary Acts merely confer a personal privilege or exemption upon the defendant, which can be waived. The party at whose instance the removal is effected is estopped from objecting that the removal was not made in time. The mere filing of a petition is not sufficient, unless in connection with the rest of the record. It shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal. A State court is not bound to surrender its jurisdiction without such a showing." 1 Ayers v. Watson, 113 U. S. 594. 2 Northern Pac. R. Co. v. Austin, 135 U. S. 315. 3 Texas & P. R. Co. v. Kirk, 115 U. S. 2; Canal & Claiborne Sts. R. Co. v. Hart, 114 U. S. 654. 4 Richards v. Incorporated Town of Rock Rapids, 31 Fed. Rep. 505. 5 McKeen v. Ives, 35 Fed. Rep. 801. 6 Purcell v. British Land & Mortg. Co., 42 Fed. Rep. 465. 7 United States v. American Bell Teleph. Co., 29 Fed. Rep. 17. 8 Ayers v. Watson, 113 U. S. 594. 9 Stone v. South Carolina, 117 U. S. 430; Yulee v. Vose, 99 U. S. 539; Meyer v. Delaware R. Construction Co. ("Removal Cases'), 100 U. S. 457; Gregory v. Hartley, 113 U. S. 742. 3 5 § 105 b. Application.-A case cannot be removed on a mere stipulation. Neither an infant nor his guardian can consent to a removal,2 as consent will not confer jurisdiction, nor can a removal be effected by filing the petition and bond, without any action of the court. The application does not constitute a waiver of the use and service of proper papers. A party seeking a removal must do all that is necessary to secure it; and the discretion of the court in passing on the question as to the necessary steps being properly taken is a legal discretion." The case is removable, though erroneously applied for under the provisions of section 639, Revised Statutes.8 A notice of the application is not necessary.9 The State court cannot cause the application to be entered nunc pro tunc, so as to entertain a motion for removal. 10 A party does not lose his right to insist on a removal by a voluntary appearance; 11 but proceeding to trial without calling the attention of the court to the petition and bond for re moval is deemed a waiver of the right.12 The filing of a petition for removal is a sufficient application. 13 The Federal court will treat as a party to a suit, upon an application for removal, one who is entitled to be made a party, but whose right is wrongfully denied by the State court.14 Parties having the right to intervene in a pending suit in a State court, but who have been refused leave, may, nevertheless, if otherwise they would have been entitled to do so, remove suit to the Federal court. 15 A party does not, by voluntarily appearing in a suit in a State court, waive his right of removal to the Federal court. 16 No prior notice to the adverse party of the presentation of a petition for removal is necessary. 17 The amending of the application for removal so as to show jurisdiction is within the discretion of the court, and cannot be claimed by a party litigant as a right. 18 The law does not provide for verification of the application for removal of a cause by affidavit. 19 1 Kingsbury v. Kingsbury, 3 Biss. 60. 2 Kingsbury v. Kingsbury, 3 Biss. 60. 3 Re Hopkins, 18 Bank Reg. 339. 4 Scott v. Otis, 10 Ch. L. N. 41. 5 Parrott v. Alabama Gold L. Ins. Co., 5 Fed. Rep. 391. 6 Clippinger v. Mo. Val. L. Ins. Co., 1 Flippen, 456. 7 Hatch v. Chicago, R. I. etc. R. Co., 6 Blatchf. 105. 8 Norris v. Mineral Point Tunnel, 7 Fed. Rep. 272. 9 McLean v. Chicago etc. R. Co., 16 Blatchf. 319; Stevens v. Richardson, 9 Fed. Rep. 191. Contra, Bristol v. Chapman, 34 How. Pr. 140; Distrow v. Driggs, 8 Abb. Pr. 305, note. 10 Ward v. Arredondo, 1 Paine, 410. 11 Stevens v. Richardson, 9 Fed. Rep. 191. 12 Home Ins. Co. v. Curtis, 32 Mich. 402. 13 La Mothe Manuf. Co. v. Nat. Tube Works, 15 Blatchf. 432. 14 Hack v. Chicago & Great Southern Ry. Co., 23 Fed. Rep. 356. 15 Snow v. Texas Trunk R. Co., 16 Fed. Rep. 1. 16 Stevens v. Richardson, 50 Blatchf. C. Ct. 53. 17 Stevens v. Richardson, 20 Blatchf. C. Ct. 53. § 105 c. Petition. A petition is a request in writing, in contradistinction to a motion which may be made viva voce.1 The office of the petition is to set on foot proceedings to obtain a removal. It must contain such aver 8 ments as entitle to relief,2 and such as are positive, and express the facts on which it depends, and not argumentative. It should point out what the question is, and how and where it will arise, and state such facts as show to the court that the case falls within the category of removable causes.5 The petition must set forth the jurisdictional facts. The facts upon which the petitioner bases his right must be made to appear, but no particular mode is prescribed. It may be by admission of parties; by affidavit, or by the testimony of witnesses;7 but where the petition fails to show that the case is removable, the court should deny the application. The right of removal is statutory, and the party applying must show upon the record that the case is one which comes within the provisions of the statute. The petition when filed becomes part of the record. It should state facts which, taken in connection with such as already appear, entitle him to a removal. 10 Where the fact of non-residence sufficiently appears on the record, it need not be shown by petition.11 It is necessary to show as well that suit was commenced "by a citizen of a State in which the suit is brought," as that it was commenced "against a citizen of another State";12 so stating that plaintiff "is a citizen" is insufficient;13 so an averment that he is a resident of the State is not sufficient.14 That a corporation was formed under the laws of a State, and is a resident thereof, is sufficient. 15 Where the petition states that the plaintiffs as executors" are citizens of the State, it is insufficient as to personal citizenship. 16 That petitioner is not a resident of the State is not sufficient for the expression of non-resident, 17 nor is a mere averment that petitioner is an alien or a citizen of another State; 18 but an averment that the defendant is a citizen of the southe n district of Alabama is a sufficient averment of citizenship of Alabama;19 but the allegation that the plaintiff is a citizen of a certain county is not sufficient allegation of citizenship. 20 The petition must state the citizenship of the parties, unless it sufficiently appears on the records. 21 The averment that certain of the petitioners, "as they are the qualified executors,' were and are citizens, is an averment of their personal citizenship. 2 But under the Act of 1875 the petitioner 22 66 26 need not state that plaintiff was at the date of the commencement of the suit a citizen of a State other than that of which defendant is a citizen, if the requisites of citizenship exist at the time of filing the petition. 23 It is otherwise under the Judiciary Act, where it must be affirmatively shown that the requisite citizenship existed at the commencement of the action.24 The petition of an intervenor is sufficient if it avers citizenship in the present tense, 25 The omission to state that plaintiff is a citizen of the State where suit is brought may be supplied subsequently. Where all the plaintiffs have the requisite citizenship, any one interested may move, but the petition must set out all the facts; 27 and under the Judiciary Act, all must join in the petition. 28 Where the removal is sought on the ground of citizenship, the petition must allege that all the defendants uniting are of a different citizenship from the plaintiffs. 29 It is no objection that the petition and bond are not signed by the petitioner. 30 They may be signed and verified by an agent or attorney.31 Nor need the petition be filed personally. 32 An application, under the Act of 1867, may be made by a corporation of another State through its authorized agent or attorney,33 but under the Judiciary Act it is not sufficient that the petition be signed by its attorney-at-law. 3 The petition need not be sworn to; the statute does not expressly require the petition to be verified by affidavit; the mere filing of the petition and bond removes it ipso facto.35 If made on notice, and the averments are not denied, it will be taken as true, and proof may be adduced if the averments are denied. 36 When the facts set forth on a petition make a case, a mistake in referring to the statute is unimportant; 37 and where a petition was founded on the Act of 1867, and did not show a right under that act, but did show a cause within the Act of 1866, it was sufficient under the Act of 1866.33 But under the Judiciary Act, the exact language of the statute should be followed in stating the grounds. The omission to refer to any special law under which the removal is demanded cannot prejudice the right; 40 and a case is removable, although erroneously prayed under the statute; but where the prayer of the petition does not ask for the removal of the entire suit, the cause will 34 |