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on the record of the original proceedings. 6 Where a
6 cause has been removed, and all the papers subsequently destroyed by fire, and the parties admit the cause was transferred in accordance with the statute, the court may presume that the requisite citizenship was shown;? so the record may be amended by consent;$ and where the record at the time of removal did disclose the fact, the transcript in the Federal court may be amended so as to conform to the State record;' but whether the record in the State court may be amended so as to conform to the statute after the term has passed, quære ? 10 An amend. ment to the transcript may be filed where the record does not disclose the requisite citizenship. 11 Under the Removal Act of 1875, the "record” that must be filed in the Federal court includes the testimony taken and on file at the time of the filing of the petition and bond. 12
1 Martin v. Kanouse, 1 Blatchf. 149. 2 Commercial & S. Bk. v. Corbett, 5 Sawy. 172. 3 Clark v. Delaware etc. Can. Co., 11 R. I. 36. 4 McBratney v. Usher, 1 Dill. 367. 5 McBratney v. Usher, 1 Dill. 367. 6 Ladd v. Tudor, 3 Wood. & M. 325; Franciscus v. Surget, 6 Robt. 33. 7 Railway Co. v. Ramsey, 22 Wall. 328.
8 Hodgson v. Bowerbank, 5 Cranch, 303. See Parker v. Overman, 18 How. 137.
9 Kaeiser v. Illinois Cent. R. Co., 6 Fed. Rep. 1. 10 Kaeiser v. Illinois Cent. R. Co., 6 Fed. Rep. 1. 11 Kaeiser v. Illinois Cent. R. Co., 6 Fed. Rep. 1. 12 Miller v. Tobin, 18 Fed. Rep. 609.
$ 107 c. Time to file record.—The jurisdiction is not complete in the Federal court before the day prescribed by the statute, although a transcript has been filed; nor can the circuit court proceed until copies of the proceedings are entered there. The provision as to the filing of the transcript is mandatory only as a matter of practice, and the defect may be cured by allowing it to be filed nunc pro tunc.: It may be filed at any time within the period allowed by the State statute;t before the commencement of the next term after the removal;5 and it is sufficient, although a term devoted exclusively to criminal cases has intervened. The proper time for entering in the circuit court "copies of the papers,” etc., is on the
first day of the next session after the filing of the petition, etc., but in any event the moving party has twenty days to file a copy of the record. The only necessary consequence of failure to file the record by the first day of the next term after application, or within twenty days thereafter, is to create a liability on the bond.8 The Act of March 3, 1875, requires that the record shall be filed in the Federal court on the first day of the next session thereof, following the filing of the petition for removal, and leave to file after this time cannot be granted, in the absence of a showing that it was impossible to file it at the required time. 9 A motion for leave to file the record was properly granted, and a motion to remand properly refused where the party removing understood the clerk to say that the term began a month later than, in fact, it did, where the other party was in no way prejudiced.10
1 Matt. of Barnesville & M. R. Co., 4 Fed. Rep. 10.
2 Fisk v. Union Pac. R. Co., 6 Blatchf. 362; Clippenger v. Mo. Val. L. Ins. Co., 1 Flippen, 456; 8 Ch. L. N. 155.
3 Woolridge v. McKenna, 8 Fed. Rep. 650.
4. Railroad Co. v. Koontz, 104 U. S. 5; King v. Worthington, 104 U. S. 44.
5 Bowen v. Kendall, 23 The Reporter, 538. 6 Jones v. Ocean S. N. Co., 11 Blatchf. 406.
7 Clippenger v. Mo. Val. L. Irs. Co., 1 Flippen, 458; S. C., 8 Ch. L. N. 155.
8 Kidder v. Featteau, 2 red. Rep. 616.
$ 107 d. Duty of clerk.-If a clerk refuses to fur. nish copies of the record and proceedings, this court will allow parties to supply them; and the petitioner may file a copy thereof in the circuit court.2 If he has done all that is necessary, he may perfect the removal by entering in the Federal court at the proper time copies of proper papers, and his appearance and special bail if necessary.3 The clerk of the State court has no right to withhold the transcript, although an appeal has been taken. 4
1 Akerly v. Vilas, 2 Biss. 110. 2 Akerly v. Vilas, 2 Biss. 110. 3 Hatch v. Chicago R. I. etc. Co., 6 Blatchf. 105. 4 Akerly v. Vilas, 2 Biss. 110.
§ 107 e. Certiorari.— A removal is effected by certiorari from the Federal court, or by order of the State court. The writ is often resorted to as a means of effecting, pursuant to law, the removal of the record from one court to another;? so a defect or omission in the transcript may be cured by certiorari,3 as where a copy of the record is incomplete;t but the writ is unnecessary when the record is already before the Federal court. The object of the writ is to require the State court to certify the copy of the record;6 and requires the clerk to certify to the same,? and his authentication is sufficient without the certificate of the judge;8 and the authentication may be on separate sheets of paper.' The Federal court may issue a certiorari to the State court, to which a return that an appeal had been taken would be sufficient. 10
This section provides that this writ shall command the State court to make return of the record of the cause removed;11 and the mandate that the State court shall proceed no farther in the cause is obligatory, as well on appeal as in the court of original jnrisdiction. 12 The enforcement of proceedings for removal may be by mandamus;13 but without express authority by statute, a Federal court cannot issue a writ of mandamus to the State court;14 and no jurisdiction is conferred to issue a mandamus under the statute;15 so the circuit court has no jurisdiction of a writ of certiorari to a State court for the removal of proceedings by the State against a railroad company under the statute of the
1 Nat. Union Bank v. Dodge, 11 The Reporter, 641.
2 U. S. v. McKee, 4 Dill. 1; S. C. 3 Cent. L. J. 292; State v. Gibbons, 1 South. 44.
3 Dennis v. Alachua Co., 3 Woods, 83; Cook v. Whitney, 3 Woods, 715.
4 Commercial Savings Bank v. Corbett, 5 Sawy. 172; Dennis v. Alachua Co., 3 Woods, 683; Cook v. Whitney, 3 Woods, 715.
5 Scott v. Clinton & Springfield Co., 6 Biss. 529; S. C., 8 Ch. L. N. 210; In re Wells, 3 Woods, 128; S. C. 17 Alb. L. J. 111.
6 Broadnax v. Eisner, 13 Blatchf. 266. 7 Broadnax v. Eisner, 13 Blatchf, 366. 8 Osgood v. Railroad Co., 6 Biss. 330. 9 Commercial and S. Bank v. Corbett, 5 Sawy. 172. 10 Ellerman v. New Orleans R. Co., 2 Woods, 120; Ins. Co. v. Morse, 20 Wall. 415. See Bell v. Dix, 49 N. Y. 232.
11 U. S. v. McKee, 4 Dill. 1; S. C., 3 Cent. L. J. 292. 12 Holden v. Putnam F. Ins. Co., 46 N. Y. 1.
13 Spraggins v. County Court, Cooke, 160, citing Ladd v. Tudor, 2 Wood & M. and see Ex parte Turner, S Wall. Jr. 258.
14 Hough v. Western_Trans. Co., 1 Biss. 425. See In re Cromie, 2 Biss. 160; Fisk v. Union Pacific R. Co., 6 Blatchf. 362.
15 American U. Tel. Co. v. Bell Telephone Co., 1 Fed. Rep. 698. 16 State v. Chicago & A. R. Co., 6 Biss. 107.
§ 107 f. What the record must show.—The cir. cuit court cannot proceed, unless the facts on which its jurisdiction rests appear in some form on the face of the record. The transcript from the State court becomes part of the record in the circuit court and in this court.2 But the recitals of the clerk cannot be considered. The record must show upon its face that the cause is removable. No amendment in the Federal court is admissible to cure material defects. * Grounds for removal cannot be set up by amendment. So where a billin equity was substituted for an action at law by leave of court, it should be dismissed. 6 To reinove a cause to the circuit court under the Act of 1987, which arises under a United States statute, the record must show from facts alleged that some disputed construction of the statute will arise in the case. It must in some form appear upon the record, by a statement of facts in legal and logical form such as is required in good pleading, that it really and substantially involves the dispute or controversy so arising. 8 And in determin. ing the jurisdictional question, the court will consider all questions of law and fact that inhere to it.9 If the jurisdictional facts sufficiently appear in the pleadings, the petition for removal need not restate them. To Where the want of jurisdiction is apparent on the face of the record, the circuit court may dismiss the suit on its own motion 11
1 Continental L. Ins. Co. v. Rhoads, 119 U. S. 237: Peper v. Fordyce, Id. 469; Johnson v. Christian, 125 U. S. 612.
2 Clinton v. Mo. Pac. R. Co., 122 U. S. 469.
4 Crehore v. Obio etc. R. Co., 131 U. S. 240; Freeman v. Butler, 39 Fed Rep. 1.
5 Fitzgerald v. Missouri P. R. Co., 45 Fed. Rep. 812; Freeman v. Butler, 39 Fed. Rep. 1.
6 Thompson v. Central Ohio R. Co., 6 Wall. 134.
7 Austin v. Gagan (Cal.), 39 Fed. Rep. 626; State of Iowa v. Chicago etc. R. Co., 33 Fed. Rep 391; Little York etc. Co. v. Keyes, 96 U. S. 199.
8 Gibbs v. Crandall, 120 U. S. 105; Carson v. Dunham, 121 U. S. 421. 9 State of Iowa v. Chicago etc. R. Co., 33 Fed. Rep. 391.
10 Little York Gold Wash. & W. Co. v. Keyes, 96 U. S. 199.
11 Mackaye v. Mallory, 19 Blatchf. 165; Am. Bible Society v. Grove, 101 U. S. 610. See Ferguson v. Ross (N. Y.), 38 Fed. Rep. 161.
§ 107 g. Record must show citizenship of parties. -On petition for removal it is sufficient if the adverse citizenship of the parties sufficiently appeared from the whole record, and also that the amount in controversy ex. ceeded $2,000. If a record fails to show the citizenship of the petitioners at the time the suit was commenced it does not entitle them to a removal.2 If the citizenship of the parties to the controversy be shown affirmatively by the record, it need not be set out in the petition;' nor is the jurisdiction lost because the facts are not set out in the complaint. Where it appears by the record that the plaintiff is a citizen of Nevada, and the defendant a citizen of California, it is sufficient to give jurisdiction. The presence upon the record of one who is merely an agent or attorney for the principal defendant will not affect the right to remove.
i Chambers v. McDougal, 42 Fed. Rep. 694.
2 Seddon v. Virginia T. & C. S. & I. Co. (Va.), 36 Fed. Rep. 6; Crehore v. Ohio etc. R. Co., 131 U. S. 240.
3 National Steamship Co., v Tugman, 106 U. S. 118; Pittshurg, C. & St. L. R. Co. v. Ramsey, 22 Wall. 322; Robertson v. Cease, 97 U. S. 616; Boudurant v. Watson, 13 U, S. 281.
4 Terry v. Sharon, 131 U. S. 40. 5 Myers v. Murray, 43 Fed. Rep. 695; 32 Am. & Eng. Corp. Cas. 25.