subsequently vacate it on the ground that it was imprudently or inadvertently granted. The order of removal cannot be renewed by a State court. 10 It may be made after the appearance of the defendant;" but if obtained without notice to the adverse party, he may appear and move to have it vacated. 12 Under the Act of Congress of March 3, 1887, upon filing the required petition and bond in the State court, no order of the State or circuit court is necessary to transfer the jurisdiction. 13 On the filing of a sufficient petition and bond, the bond is presumed accepted. Irregularity in filing the affidavit and bond for removal the day before taking the formal order making the movant a party and removing the cause, was cured by such order. 15 The disqualification of the judge of the State court who made an order for the removal, under Act of Congress admitting Montana as a State, does not affect the jurisdiction of the Federal court.16

1 Osgood v. C. D. & V. R. Co., 6 Biss. 330; Jones v. Amazon Ins. Co., 9 Ch. L. N. 68; Connor v. Scott, 4 Dill. 212; Fulton v. Golden, 20 Alb. L. J, 229; Lalor v. Dunning, 56 How. Pr. 209; Chamberlain v. Amer. L. & T. Co., 18 N. Y. Supr. 370; St. Anthony's F. W. P. Co. v. King William Bridge Co., 23 Minn. 186; Clippenger v. Mo. Val. L. Ins. Co., 1 Flippen, 456; Hatch v. Chicago R. I. & P. R. Co., 6 Blatchf. 105; Ficklin v. Tarver, 59 Ga. 263.

2 Jackson v. Mut. L. Ins. Co., 60 Ga. 435. See Vandervoort v. Palmer, 4 Duer, 677; Jones v. Seward, 26 How. Pr. 433.

3 Commercial & Sav. Bank v. Corbett, 5 Sawy. 172.

4 Kern v. Huidekoper, 103 U. S. 485.

5 Fisk v. Union Pac. R. Co., 6 Blatchf. 362; Hatch v. Chicago R. I. & P. R. Co., 6 Blatchf. 105; People v. Judges, 21 Mich. 577; Carpenter v. N. Y. & N. H. R Co., 11 How. Pr. 481; Bell v. Dix, 49 N. Y. 232; Cooke v. State Nat. Bank, 52 N. Y. 96.

6 Hatch v. Chicago R. I. etc. R. Co., 6 Blatchf. 111.

7 Liddle v. Thatcher, 12 How. Pr. 294.

8 Shepherd v. Young, 1 Mon. 203.

9 Chamberlain v. Amer. N. L. & T. Co., 18 N. Y. Supr. 570; Cissel v. McDonald, 16 Blatchf. 150.

10 St. Anthony's F. W. P. Co. v. King Bridge Co., 23 Minn. 186; Ralph v. Claiborne, 2 Mart. (La.) 176; Knickerbocker L. Ins. Co. v. Gorback, 70 Pa. St. 150; Chamberlain v. Am. L. Ins. Co., 18 N. Y. Supr. 570.

11 Houser v. Clayton, 2 Woods, 273.

12 Lalor v. Dunning, 56 How. Pr. 209.

13 Wilson v. W. U. Tel. Co., 34 Fed. Rep. 561.

14 Chattanooga R. & C. R. Co. v. Cincinnati N. O. & T. P. R. Co., 44 Fed. Rep. 456.

15 First Nat. Bank v. Merchants' Bank (Ga), 37 Fed. Rep. 657. 16 Strasburger v. Beecher, 44 Fed. Rep. 209.

7

§ 108 d. Jurisdiction, when attaches in circuit court. The jurisdiction of the circuit court attaches as soon as it becomes the duty of the State court to proceed no farther.1 Where a sufficient case is made the jurisdiction of the State court is at an end, and the jurisdiction of the Federal court attaches.2 When a case is clearly within the statute, and the controversy one in relation to the priority of liens between citizens of different States, the circuit court has jurisdiction.3 The jurisdiction depends on the act under which the suit is removed; so restrictions on the jurisdiction in the eleventh section of the Judiciary Act have no application to removals under the twelfth section. If the statute authorizes a removal, it empowers the circuit court to take jurisdiction;5 but it is not required to take jurisdiction until in some form the jurisdiction is made to appear of record; so there is no jurisdiction where no question is pending. Removal is an indirect mode by which the circuit court acquires original jurisdiction.8 Where the defendant has filed the proper application and bond, the jurisdiction of the circuit court will not be affected by his subsequent death, and the execution of an appeal bond by his executor. The question of jurisdiction belongs to the Federal court, and must be determined there;10 so inquiry into the facts of the petition cannot be made in the State court; it is a question exclusively for the Federal court. 11 Where a suit is legally removed the jurisdiction of the State court ceases, the case is at end;12 and it cannot be remanded for any purpose;13 and the question of jurisdiction is not waived where a State court asserts jurisdiction after a proper application for removal. 14 If the case be within the act of Congress, and the petition in due form, accompanied by the required surety, the jurisdiction of the State court in the case ceases eo instanti; and all its proceedings, after an erroneous denial of the petition for removal, are coram non judice. The requirements of the act cannot be varied or added to by the laws of the State, or the practice of the State court, 17 and it is not a valid objection to the removal that process was not served in conformity to the laws of the United States. 18 Where defendant is served with process, and has answered, the court has personal jurisdiction over him, and a second service of process is not necessary.

16

19

That proof of publication of notice to defendant was not made prior to the order for removal will not prevent the Federal court from having jurisdiction;20 and where defendant voluntarily appears and answers, the court acquires jurisdiction, irrespective of the want of a replication. 21 The filing of the petition is not a waiver of the right to insist that service of process was procured by fraud. 22 Where the petition was reserved for the decision of the Supreme Court, and the latter dismissed the petition and remanded the cause, the circuit court had no jurisdiction. 23 The ground of jurisdiction on the part of the Federal court must appear in the record, to make a case for removal. The allegations of the petition for removal can be considered only so far as they are consistent with the record. 24 The jurisdiction of a Federal court to which a cause has been removed, relates back to the time of the original service of process. 25 If the State court has no jurisdiction,

26

the Federal court to which the case is removed has none. A defendant who has had the cause removed to the Federal court, and there renewed his motion to quash the service of process on him, does not thereby enter an appearance by which the service of process is made unnecessary. By making an application to remove the cause to the United States circuit court, a motion to quash the service made previously in the State court is not thereby waived. 28 Where the amount claimed by way of set-off exceeds the jurisdiction of the State court from which the cause is re moved to the United States court, the United States court has no jurisdiction. 29 The proper way in which to raise the objection that the circuit court has no jurisdiction of a cause removed from a State court is by plea in abatement. 30 A defendant on whose motion the cause has been removed shall not attack its jurisdiction on the ground that the action was improperly brought in the State court. 31 Where a case comes from a State court as one case, of which the circuit court has jurisdiction, that court does not lose jurisdiction because one part of the case has to be tried on the equity side and the other part on the law side of the court.32 Jurisdiction is not ousted by intervention of other parties after removal. 33 The formalities prescribed by the Removal Act of 1875 are not conditions precedent to the jurisdiction of the Federal courts,

and a defect in the bond required by that act may be cured by the substitution of a new bond, upon motion in the Federal court to amend. 34 Under the Act of 1887, as soon as the petition and bond for the removal of a removable cause are filed in the State court, its jurisdiction absolutely ceases, and that of the circuit court immediately attaches. Filing a petition and bond will bar the petitioner from contesting the jurisdiction of the Federal court on the ground that the State court had not acquired jurisdiction. 56

1 Railroad Co. v. Koontz, 104 U. S. 5.

2 Clark v. Chicago, M. & St. P. R. Co., 11 Fed. Rep. 355; Sweet v. Same, 11 Fed. Rep. 355.

3 Beery v. Irick, 22 Gratt. 484.

4 Lexington v. Butler, 14 Wall. 282; Green v. Custard, 23 How. 484 Winans v. McKean etc. Nav. Co., 6 Blatchf. 215; Bushnell v. Kennedy, 9 Wall. 387; Sands v. Smith, 1 Dill. 277; Sayles v. N. W. Ins. Co., 2 Curt. 212; Barclay v. Levee Commissioners, 1 Woods, 254; Gaines v. Fuentes, 92 U. S. 10.

5 Bushnell v. Kennedy, 9 Wall. 387; Lexington v. Butler, 14 Wall. 282; Gaines v. Fuentes. 92 U. S. 10; Sands v. Smith, 1 Abb. U. S. 368; S. C., 1 Dill. 290; Bliven v. N. E. Screw Co., 3 Blatchf. 111; Barney v. Globe Bk. 5 Blatchf. 107; Winans v. Mc Kean R. &. N. Co., 6 Blatchf. 215; Sayles v. Northwestern Ins. Co., 2 Cu.t. 212. But see Beardsley v. Torrey, 4 Wash. C. C. 286; Colcord v. Wall, 2 Mil's, 459; Denniston v. Potts, 19 Miss. 36; Hadley v. Dunlap, 10 Ohio St. 1; Hazard v. Durant, 9 R. 1. 602.

6 American Bible Society v. Grove, 101 U. S. 610.

7 Fasnacht v. Frank, 23 Wall. 416.

8 Karns v. Atlantic & Ohio R. Co., 10 Fed. Rep. 309; Bushnell v. Kennedy, 9 Wall. 387; Railroad Co. v. Whitton, 13 Wall. 270. See Ex parte Crane, 5 Peters, 206.

9 Garrett v. Bonner, 30 La. An. 1305.

10 Dennistoun v. Draper, 5 Blatchf. 338; Taylor v. Rockefeller, 7 Cent; L. J. 349; Cobb v. Globe Mut. L. Ins. Co., 3 Hughes, 452.

11 Fisk v. Union Pac. R. Co, 8 Blatchf. 243; Stewart v. Mordecai, 40 Ga. 1; Chamberlain v. Amer. L. Ins. Co., 18 N. Y. Supr. 370.

12 Clark v. Chicago, M. & St. P. R. Co., 11 Fed. Red. 355; Sweet v. Same, 11 Fed. Rep. 355.

13 Kanouse v. Martin, 15 How. 198; Insurance Co. v. Dunn, 19 Wall. 214; Mahone v. Manchester etc. R. Co., 111 Mass. 72.

14 Gordon v. Longest, 16 Peters, 98; Kanouse v. Martin, 15 How. 198; Insurance Co. v. Dunn, 19 Wall. 214; New Orleans & R. Co. v. Mississippi, 102 U. S. 135; Removal Cases, 100 U. S. 475; Goodrich v. Hunton, 29 La. An. 372; Stevens v. Phoenix Ins. Co., 41 N. Y. 149; Hadley v. Dunlap, 10 Ohio St. 1; Erie R. Co v. Stringer, 32 Ohio St. 468; Stanley v. Chicago, R. I. & P. R. Co., 3 Cent. L. J. 430.

15 Removal Cases, 100 U. S. 457; Fisk v. Union Pac. R. Co., 6 Blatchf 362: Hatch v. Chicago, R. I. & P. R. Co., 6 Blatchf. 105; Matthews v. Lyall, 6 McLean, 13; Taylor v. Rockefeller, 7 Cent. L. J. 298; Fulton v. Gordon, 20 Alb. L. J. 229; Ficklin v. Tarver, 59 Ga. 263; Beery v. Chicago etc. R. Co,

DESTY REMOVAL.-32.

64 Mo. 533; Blair v. West Point Manufacturing Co., 7 Neb. 146; St. Anthony's Falls W. P. Co. v. King Bridge Co., 23 Minn. 186; Shaft v. Phoenix Life Ins. Co., 67 N. Y. 544; Durham v. Southern L. Ins. Co., 46 Texas, 182; McMurdy v. Insurance Co., 4 Week. No. Cas. 18.

16 Herryford v. Etna Ins. Co., 42 Mo. 153; Akerly v. Vilas, 2 Biss. 110' Fisk v. Union Pac. R. Co., 6 Blatchf. 362; 8 Blatchf. 249; Stevens v Phoenix Ins. Co., 41 N. Y. 149. See Kanouse v. Martin, 15 How. 198; Gordon v. Longest, 16 Peters, 97; Insurance Co. v. Dunn, 19 Wall. 214; French v. Hay, 22 Wall. 250; Removal Cases, 100 U. S. 457; Du Vivier v. Hopkins, 116 Mass. 126; Bell v. Dix, 40 N. Y. 232; Amory v. Amory, 36 N. Y. Sup. 524; Hadley v. Dunlap, 10 Ohio St. 8; Stanley v. Chicago, R. I. & P. R. Co., 3 Cent. L. J. 440; Rosenfield v. Adams Express Co,, 21 La. An. 233.

17 Shaft v. Phoenix M. L. Ins. Co., 67 N. Y. 544. 18 Sayles v. Northwestern Ins. Co., 2 Curt. 212. 19 Ward v. Todd, 2 Morr. Trans. 1.

20 Turner v. The I. B. & W. R. Co., 8 Biss. 280.

21 Turner v. The I. B. & W. R. Co., 8 Biss. 280.

22 Moynahan & Wilson, 6 Cent. L. J. 28.

23 Kimball v. Evans, 93 U. S. 320. See Fasnacht v. Frank, 23 Wall. 416. 24 Rothschild v. Matthews, 22 Fed. Rep. 6.

25 Owens v. Ohio Central R. Co., 20 Fed. Rep. 10.

26 Fidelity Trust Co. v. Gill Car. Co., 25 Fed. Rep. 737.

27 Parrott v. Alabama Gold Life Ins. Co., 4 Woods C. Ct. 353.

28 Kauffman v. Kennedy, 25 Fed. Rep. 785.

29 Hummel v. Moore, 25 Fed. Rep. 380.

30 Clarkhuff v. Wisconsin, Iowa etc. R'y Co., 26 Fed. Rep. 465.

31 Edwards v. Connecticut Mut. Life Ins. Co., 20 Fed. Rep. 452.

32 Lacroix v. Lyons, 27 Fed. Rep. 403.

33 Stewart v. Durham, 115 U. S. 61.

But

34 Harris v. Delaware, Lackawanna etc. R. Co., 18 Fed Rep. 833. contra: Rosenblatt v. Reliance Lumber Co. (Texas Circuit), 18 Fed. Rep. 705.

35 Wilson v. West. U. Tel. Co., 34 Fed. Rep. 561; State, Tillman, v. Coosaw Min. Co., 45 Fed. Rep. 804; Torrent v. S. K. Martin L. Co., 37 Fed. Rep. 727.

36 Tallman v. Baltimore & O. R. Co., 45 Fed. Rep. 156.

§ 108 e. Objections to jurisdiction.- Formerly the objection to the jurisdiction from a denial of the complainant's averment of citizenship could only be raised by a plea in abatement or by demurrer, and not by answer.1 This rule is modified by Act of March 3, 1875, determining the jurisdiction of the circuit courts of the United States (18 Stats. 472). Under Act of March 3, 1875, the objection to the jurisdiction upon a denial of the averment of citizenship may be taken in the answer, and the time at which it may be raised is not restricted.3 It may be taken at

2