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4 Gate v. Babcock, 4 Wash. C. C. 344; McMurdy v. Conn. G. L. Ins. Co.,9 Ch. L.N. 324.
5 Easton v. Rucker, 1 Marsh."J. J. 232. See Brownell v. Gordon, 1 McAll. 207.
6 Dennis v. Alachua Co., 3 Woods, 683; Cook v. Whitney, 3 Woods, 715. 7 Ward v. Arredondo, 1 Paine, 410. 8 St. Paul & Chicago R. v. McLean, 108 U. S. 212. 9 Rowell v. Hill, 28 Fed. Rep. 433. 10 Traders' Bank v. Tallmadge, 20 Blatchf. C. Ct. 39. 11 McGregor v. Gillis, 30 Fed. Rep. 388.
§ 111 h. Sufficiency of bond.—A Federal court will not, on motion to remand, enter upon inquiry as to the sufficiency of the sureties on the bond; and the cause will not be remanded on this ground; 2 nor because it is irregular or objectionable in form.3 A Federal court will not, on motion, enter on the inquiry as to the sufficiency of the sureties on a bond approved by the State court. If the conditions in the bond omit to provide for the pay. ment of costs, the cause will be remanded.5
1 Van Allen v. Atchison, C. & P. R. Co., 3 Fed. Rep. 545.
5 Torrey v. Grant Loco. W'ks, 14 Blatchf. 269; McMurdy v. Conn, G. L. Ins. Co., 9 Ch. L. N.324; Farmers'L. & T. Co. v. C. P. & S P. R. Co.,12 Ch. L. N. 65. Contra: Baker v. Peterson, 4 Dill. 562; Dennis v. Alachua Co., 3 Woods, 683.
§ 111 i. Application too late.—The mere failure to move to remand at the same term at which the record is filed will not preclude inaking the objection at the next term; nor is a neglect till a full term has passed a waiver of the right to do so. If the removal is not applied for in time, the cause will be remanded. But the objection must be seasonably inade, or it will be deemed waived. And it may be conclusively waived by submitting to the jurisdiction of the circuit court, by taking testimony, and by delay for an unreasonable time to object. Where the application is made too late, the case will not be remanded. A delay of over a year, in the absence of explanation, held fatal to a motion to remand a case to the State court, on the ground that the petition for removal was not filed in time. Under the Acts of Congress of 1875 and 1887, the United States circuit court cannot remand aca se removed to it from the State court prior to the term of court in which the party taking the removal is required to file a copy of the record.? Where no extension of time had been granted by any rule or order of said State court the case must be remanded. 8 When a case is referred to the master, with directions to take testimony and find the facts and conclusions of law arising thereon, it is on trial; and an application under the Act of Congress of March 3, 1887, sec. 2, to examine into the truth and grounds of an affidavit for removal, comes too late after such reference. 9 Where demurrers were heard and sustained in the State court, and plaintiffs were given leave and time to file amended complaints, which they filed; to plaintiffs' amend. ed complaints defendant demurred, and at the same time filed their petitions and bonds for removal to this court; the petitions and bonds were not filed within the statutory time, and must be remanded. 10 It is not ground for remanding a cause that the transcript was received and filed on the last day allowed therefor, at a place other than where the first term was to be held; where defendants were unable to get the transcript from the State court before that day, and it appears that all the parties and attorneys reside in the place where it was filed. 11
1 Kauffman v. McNutt, 3 Cent. L. J. 408; Kain v. Texas Pac. R. R. Co., 3 Cent. L. J. 12; Carrington v. Florida R. Co., 9 Blatchf. 467.
2 Young v. Andes Ins. Co., 1 Flippin, 598. 2 French v. Hay, 22 Wall, 244.
4 French v. Hay, 22 Wall. 244; Ames v. Colorado Cent. R. R. Co., 9 Ch. L. N. 132; Young v. Andes Ins. Co., 3 Cent. L. J. 12; Carrington v. Florida R. Co., 9 Blatchf. 467.
5 Kerting v. Amer. Oleograph Co., 10 Fed. Rep. 17; Pratt v. Albright, 9 Fed. Rep. 634.
9 Miller v. Kent, 18 Fed. Rep. 561. 7 Kansas City & T. R. Co. v. Interstate Lumber Co., 36 Fed. Rep. 9. 8 Wedekind v. Southern Pacific Co., 13 Sawy. 475.
9 Lookout Mountain R. Co. v. Houston, 32 Fed. Rep. 711; Neal v. Foster, 31 Fed. Rep. 53.
10 Delbanco V. Singletary, 40 Fed. Rep. 177. 11 Henderson v. Cabell, 43 Fed. Rep. 257.
§ 111 j. Effect of remand.-On order the circuit court remanding a cause, the jurisdiction of the State court, ipso facto, re-attaches, and if no steps are taken to reverse the judgment of the circuit court, the State court may proceed with the cause," and the State appellate tribunal cannot interfere by certiorari to oust the jurisdiction.3 Where the Federal court declines to take jurisdiction and remand the cause, it does not operate as a discontinuance, but it is deemed to have been pending in the State court. If the circuit court does not obtain jurisdiction it cannot, on remanding the cause, give a judgment for costs, and order execution thereon.5 A second petition for removal cannot be filed on the saine ground when case has been remanded by the Federal court. If on tłe first removal, citizenship is not properly alleged, and the cause remanded, this is conclusive as to this cause of removal, and a second removal for the same cause cannot be had.7
1 Thatcher v. McWilliams, 47 Ga. 306; 50 Ala. 464; Germania F. Ins. Co. v. Francis, 52 Miss. 457.
2 Thompson v. Kendricks, 5 Hayw, 115.
§ 111 k. No appeal from order of circuit court remanding cause. -Under the Act of March 3, 1887, a judgment of a Federal circuit court remanding a cause to a State court on the ground that the Federal court has no jurisdiction, is not one which the Supreme Court can review by appeal or writ of error. Where a cause has been removed to the United States circuit court, and that court remands it to the State court, the question of jurisdiction is res judicata, and cannot be inquired into in the State court. ? The proviso in section 6 of the Act of March 3, 1587 (24 Stat. 552, ch. 373), concerning the jurisdiction over suits which had been removed from a State court prior to the passage of the act, relates only to the jurisdiction of the circuit courts of the United States, and does not confer upon the Supreme Court jurisdiction over an appeal from a judgment remanding a cause to a State court; but such jurisdiction was expressly taken away by the last paragraph of section 2 of the act, taken in connection with the repeal of section 5 of the Act of March 3, 1875 (18 Stat. 470).3 The United States Supreme Court cannot review, on appeal or writ of error, the order of a circuit court, remanding a suit which had been removed under the Act of 1887, and which was begun, removed and remanded after that act went into effect.4 An order discussing or remanding a cause for want of jurisdiction is not a final judgment in the action. The remedy is by mandamus to compel action.” Under the Act of 1875, an order of the circuit court dismis. sing or remanding a cause removed from a State court was reviewable in the Supreme Court. 6 But the Supreme Court cannot take jurisdiction on appeal or writ of error if the order to remand was made while the Act of March 3, 1875, chap. 137 (18 Stat. 470), was in force; but the writ of error was not brought until after that of March 3, 1887, went into effect. Until the Act of 1875 there was no such jurisdiction. The provision of that act giving the jurisdiction was repealed by the Act of 1887 without any reservation as to pendling cases, the proviso in the repealing section having reference “only to the jurisdiction of the circuit court and the disposition of the suit on its meri s."8
As a consequence of this, the repeal operated to take away jurisdiction in cases where the order to remand had been made, but no appeal or writ of error taken, because “ if a law conferring jurisdiction is repealed without a reservation as to pending cases, all such cases fall with the law."9 A want of jurisdiction of a circuit court, arising out of a defect in the allegations of citizenship in a cause removed from the State court on the ground of citizenship, cannot be cured by affidavits here. 10 A judgment of the circuit court remanding a cause to the State court is final and conclusive, under the Act of Aug. 13, 1888, and has the effect of taking away the remedy by mandamus to compel the former court to take jurisdiction, as well as that of appeal and writ of error. A Federal court not having obtained jurisdiction of a cause upon the first attempt to remove it, its order remanding the cause is no bar to a subsequent removal on the same transcript. 12
1 Gurnee v. Patrick Co., 137 U.S. 141; followed in Birdseye v. Shaeffer, 140 U, S. 117.
2 Bodley v. Emporia Nat. Bank, 38 Kan. 59.
3 Wilkinson v. Nebraska, 123 U. S. 286; Whelan v. New York etc. R. Co. (Ohio), 35 Fed. Rep. 819.
4 Morey v. Lockhart, 123 U. S. 56; Sherman v. Grinnell, 1.3 U. S. 679.
5 Chicago & A. R. R. Co. v. Wiswall, 90 U. S. 507; Knickerbocker Ins. Co. v. Comstock, 83 U. S. 258; Richmund etc. R. Co. v. Thourun, 134 U. S. 45.
6 Hoadley v. San Francisco, 94 U. 8. 4; Ayers v. Chicago, 101 U. S. 184; Babbitt v. Clark, 103 U. S. 606; Edrington v. Jefferson, 111 U.S.770: Hancock v. Holbrook, 112 U. S. 229; Mansfielt C. & L. M. R. Co. v. Swan, 111 U. S. 379: Thayer v. Life Asso. of America, 112 U. S. 717.
7 Chicago & A. R. Co. v. Wi-wall, 90 U. S. 23 Wall. 507.
§ 111 l. Costs on remanding suit.-One who has removed a cause to a Federal court without right to do so must pay all consequent costs on remanding.'
1 Bank of Metropolis v. Peloubet, 12 N. J. L. J. 344.
§ 111 m. Cause when not remanded.- A cause will not be remanded on the ground that there is ample remedy at law and the suit was brought in equity where a suit in equity was necessary; or where the pleadings could be reformed and the cause transformed into an action at law, or where the bill would be dismissed rather than the cause remanded. When a proper bond and petition for removal have been filed in the State court, the omission to ask the State court to act on the petition is no ground for remanding the cause. Where a cause is once removed from a State court to a Federal court, and there are no jur'sdictional objections to its remaining there, the facts, that a defendant has signed the removal bond as surety, and that the other surety had no authority to sign, are not, where the bond is otherwise ample, sufficient grounds for remanding the suit.3 The cause will not be remanded after removal because of a preliminary injunction staying the proceedings of the State court, granted in another State court.4 Where the Federal court has the same power as the State court to appoint a receiver in an action brought by a voluntary assignee against a non-resident creditor, it will retain the
.5 A cause cannot be remanded merely on consent of the parties. 6 A plea to the jurisdiction by a foreign corporation, on the ground that the cause could be tried with greater convenience in the court of its own State,