In suits or criminal prosecutions against revenue officers, 24 officers of either House of Congress, 25 or persons claiming rights under the revenue laws,26 or against persons who seek protection under the Civil Rights law; 27 a removal may be had "at any time before the trial or final hearing." It has been held that a prosecution begun by information before a justice of the peace for a misdemeanor, which is not the subject of indictment, may be thus removed.28 No removal can be had before indictment or information in the State court.2 29 Under previous statutes authorizing removals in cases "before trial or final hearing," or "before final hearing or trial"; it was held that a removal might be made after a new trial had been ordered,30 or the unsuccessful party had performed all the conditions precedent to obtain the right to a new trial.31 That the defendants were not bound to take affirmative action in case of a reversal, until the complainants had caused the case to be redocketed on notice to them.32 That a removal might be had after a jury had disagreed,33 after a general demurrer had been overruled,34 after the appellate court had reversed an order for a reference to hear and determine and had ordered 24 U. S. R. S., § 643, as amended by 28 St. at L., p. 36. 25 18 St. at L., ch. 130, § 8, p. 401. 26 U. S. R. S., § 643, as amended by 28 St. at L., p. 36. 27 U. S. R. S., § 641. 28 Virginia v. Bingham, 88 Fed. 561. 29 Virginia v. Paul, 148 U. S. 107, 37 L. ed. 386. 30 Baltimore & O. R. Co. v. Bates, 119 U. S. 464, 7 Sup. Ct. 285, 30 L. ed. 436; Dart v. McKinney, Fed. Cas. No. 3,583 (9 Blatchf. 359); Kellogg v. Hughes, Fed. Cas. No. 7,662 (3 Dill. 357); Minnett v. Milwaukee & St. P. Ry. Co., Fed. Cas. No. 9,636 (3 Dill. 460); Sims v. Sims, Fed.. Cas. No. 12,894 (17 Blatchf. 369); Melendy v. Currier, 22 Fed. 129 (22 Blatchf. 503); Sutherland v. Jersey City & B. R. Co., 22 Fed. 356; Virginia v. Bing- 31 Insurance Co. v. Dunn, 19 Wall. 214, 224, 22 L. ed. 68 (where the language of the statute construed was "before a hearing or trial''; but there were dicta to the effect that this language is synonymous with "trial or final hearing''). 32 Pettilon v. Noble, Fed. Cas. No. 11,044 (7 Biss. 449). 33 Osborn v. Osborn, 5 Fed. 389 (2 McCrary 455); Burson v. National Park Bank, 40 Ind. 173, 13 Am. Rep. 285; Clark v. Delaware & H. Canal Co., 11 R. I. 36. 34 Field v. Williams, 24 Fed. 513. 37 35 issues to be framed for trial in the court below; and that the language construed meant a final hearing or trial on the merits.36 But that there could be no removal pending a motion for a new trial, which had not been decided; 87 nor pending an appeal, which had not been decided; 38 nor after the appellate court had directed a reversal and a new trial. When the time allowed for a rehearing had not expired, and subsequent to the attempted removal a rehearing was granted and the judgment was affirmed; nor after the court of review had directed the court below to enter a decree in conformity with its opinion; 40 nor after the appellate court had ordered an accounting before a master.41 39 § 544. Practice on removals. In general. "Where the sole ground for removal is a difference of citizenship, whether or not there is a separable controversy in the case, and in ordinary suits arising under the Constitution of laws or treaties of the United States, the practice upon removals is the same. The party entitled to remove must make and file in the State court a petition duly verified for the removal of the suit into the circuit court to be held in the district where the suit is pending; and he must make and file therewith a bond, with good and sufficient surety, for his or their entering into such district court within thirty days from the date of the filing of the petition a certified copy of the record in such suit, and for paying all costs that may be awarded by the said district court, if said district court shall hold that said suit was wrongfully or improperly removed thereto, and also for their appearing and 35 Douglas v. Caldwell, 65 N. C. 248. 36 Akerley v. Vilas, 24 Wis. 165, 1 Am. Rep. 166. 37 Vannevar v. Bryant, 21 Wall. 41, 22 L. ed. 476; Bryant v. Rich, 106 Mass. 180, 8 Am. Rep. 311. 38 Stevenson V. Williams, 19 Wall. 572, 22 L. ed. 162; Lowe v. Williams, 94 U. S. 650, 24 L. ed. 216; Brice v. Somers, Fed. Cas. No. 1,856 (1 Flip. 574); Williams v. Succession of Williams, 24 La. Ann. 55; Meaux v. Pittman, 32 La. Ann. 405; Miller v. Finn, 1 Neb. 254; Whittier v. Hartford Ins. Co., 55 N. H. 141, 20 Am. Rep. 185; Beery v. Irick (Virginia), 22 Grat. 484, 12 Am. Rep. 539. 39 Chicago & N. W. R. Co. v. MeKinley, 99 U. S. 147, 25 L. ed. 272; affirming McKinley v. Chicago & N. W. R. Co., 44 Iowa 314, 24 Am. Rep. 748. 40 Darst v. Peoria, 13 Fed. 561. 41 Jifkins v. Sweetser, 102 U. S. 177, 26 L. ed. 129. entering special bail in such suit, if special bail was originally requested therein. It shall then be the duty of the State court to accept said petition and bond and proceed no further in such suit. Written notice of said petition and bond for removal shall be given the adverse party or parties prior to filing the same."'1 Previously to the Judicial Code, no notice to the plaintiff was required. This seems to give the plaintiff a right to a hearing in the State court before the removal is asked, except, perhaps, when the removal is prayed because of prejudice or local influence.3 According to the preponderance of authority, the petition and bond may be filed during a vacation of the State court. In the Supreme Court of New York, the papers must be filed in the clerk's office of the county in which the venue is laid. The approval by the presiding justice of another county in the same § 544. 1 Jud. Code, § 29, 36 St. at L. 1087; re-enacting with alterations, 25 St. at L., p. 433, ch. 866, § 3. 2 See People ex rel. Mayor v. Nichols, 79 N. Y. 582; Fisk V. Union Pac. R. Co., Fed. Cas. No. 4,828 (8 Blatchf. 243); Wormser v. Dahlman, Fed. Cas. No. 18,048 (16 Blatchf. 319, 57 How. Prac. 286); Wehl v. Wald, Fed. Cas. No. 17,356 (17 Blatchf. 342); Stevens v. Richardson, 9 Fed. 191 (20 Blatchf. 53); Chiatovitch v. Hanchett, 78 Fed. 193; Creagh v. Equitable Life Assur. Soc., 83 Fed. 849; Crotts v. Southern Ry. Co., 90 Fed. 1; Ficklin v. Tarver, 59 Ga. 263; Southern Ry. Co. v. Hudgins, 107 Georgia 334, 33 S. E. 442; Louisiana State Bank v. Morgan (Louisiana), 4 Mart. (N. S.) 344. 8 See $549, infra. 4 Osgood v. Chicago, D. & V. R. Co., Fed. Cas. No. 10,604 (6 Biss. 330); Burck v. Taylor, 39 Fed. 581; 5 Remington v. Central Pac. R. Co., 198 U. S. 95, 99, 49 L. ed. 959, 963; Noble v. Massachusetts Benefit Ass'n, 48 Fed. 337; Loop v. Winters' Estate, 115 Fed. 362; Groton Bridge & Mfg. Co. v. American Bridge Co., 137 Fed. 284; Johnson v. Computing Scale Co., 139 Fed. 339. district, when there was no court in session in the county where the case was pending, did not cure this error. A case cannot be removed upon motion without a petition.? A case cannot be removed by stipulation or consent, where the record does not show the jurisdiction.8 It is the usual and the safer practice to present the petition and bond to a judge of a state court, where the suit is pending, and to obtain the formal acceptance of the same by that court; but some authorities hold that, when they are filed in the clerk's office, this is unnecessary.10 Were, after the petition and bond had been filed, a motion was made in the State court for a removal, which was denied as premature, and the defendant's counsel then asked leave to withdraw his motion for the time being which was granted; it was held, that the removal did not take effect, and that the State court retained jurisdiction until 6 Noble V. Massachusetts Ben. Ass'n, 48 Fed. 337. 7 Nelson v. Black Diamond Mining Co., 237 Fed. 264. 8 People's Bank v. Calhoun, 102 U. S. 256, 26 L. ed. 101; Kingsbury v. Kingsbury, Fed. Cas. No. 7,817 (3 Biss. 60); First Nat. Bank v. Prager, C. C. A., 91 Fed. 689. 9 Noble V. Massachusetts Ben. Ass'n, 48 Fed. 337, 338, 339; Sanderlin v. Peoples' Bank, 140 Fed. 191 (where, in the State of North Carolina, the clerk had power to enter certain ex parte orders, and the petition was presented to such clerk). It has been held that the bond, as well as the petition, must be presented. Roberts v. Carrington, 2 N. Y. Super. Ct. (2 Hall) 694; Mayo v. Dockery, 108 Fed. 897; Higson v. North River Ins. Co., 184 Fed. 165, 168. 10 Osgood v. Chicago, D. & V. R. Co., 6 Biss. 330, 340; Miller v. Tobin, 18 Fed. 609, 613; Brown v. Murray, Nelson & Co., 43 Fed. 614; Noble v. Massachusetts Ben. Ass'n, 48 Fed. 337; Wills v. Baltimore & O. R. Co., 65 Fed. 532; North American Loan & Trust Co. v. Colonial & U. S. Mortg. Co., 3 S. D. 590, 54 N. W. 659; Frazier v. Hines, 260 Fed. 874. Contra, Shedd v. Fuller, 36 Fed. 609; Roberts v. Chicago, St. P., M. & O. R. Co., 45 Fed. 433; writ of error dismissed, Chicago, St. P., M. & O. R. Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123, 25 L. ed. 902; Hall v. Chattanooga Agricultural Works, 48 Fed. 599, 601; LaPage v. Day, 74 Fed. 977; Fox v. Southern Ry. Co., 80 Fed. 945; Mays v. Newlin, 143 Fed. 574 (where an oral motion in the State court for the removal was held to be a sufficient presentation of the petition and bond, which were on file with the clerk); Rhode Island Horseshoe Co. v. Goodenough Horseshoe Co., 52 How. Pr. (N. Y.) 111, 1 Abb. N. C. 11; Tunstall v. Parish of Madison (Louisiana), 30 La. Ann. 471; Mayo v. Dockery, 108 Fed. 897; Higson v. North River Ins. Co., 184 Fed. 165, 168. a subsequent motion was made and granted.11 When the time. expires during vacation, it is the better practice to present the petition and bond to the State judge in chambers, if that is practicable, and to file the petition and bond in the clerk's office.12 The endorsement by the clerk of an erroneous file mark,18 or the omission of any file mark, 14 will not affect the validity of the proceedings provided the petition and bond are actually filed. The District Court of the United States, to which the suit is properly removed, is that held in the district, within the boundaries of which the suit is pending in the State court.15 This is ordinarily that held in the district, within the limits of which process was served upon the defendant, although the cause of action arose in another district; 16 but if the suit, at the time of the removal, is pending in another district from that within which it was first brought, the District Court of the United States held within the district where it is pending when the petition is filed is the one to which the case should be removed.17 The Judicial Code provides: that the removal of suits between citizens of the same State claiming land under grants of different States, 18 where the defendants are revenue officers of the United States, sued for official acts; or persons claiming defenses under the revenue laws; 19 or officers of either House 11 Mays v. Newlin, 143 Fed. 574. 12 Mecke v. Valleytown M. Co., C. C. A., 93 Fed. 697. 13 Wills v. Baltimore & O. R. Co., 65 Fed. 532. 14 Waite v. Phoenix Ins. Co., 62 Fed. 769; Brady v. J. B. M'Crary Co., 244 Fed. 602. 15 Ex parte State Ins. Co. of Missouri, 18 Wall. 417, 21 L. ed. 904; Cobb v. Globe Mut. Life Ins. Co., Fed. Cas. No. 2,921 (3 Hughes, 452); Knowlton v. Congress & Empire Spring Co., Fed. Cas. No. 7,902 (13 Blatchf. 170); Burck v. Taylor, 39 Fed. 581; affirming judgment, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 578; Ex parte Groom, 40 Ala. 731; Sinclair v. El Dia Ins. Co., N. Y. Sup. Ct., Sp. Tm., Cohalan, J., N. Y. L. J., Feb. 25, 1914. But see Suydam v. Smith, 1 Denio (N. Y.) 263. 16 Burck v. Taylor, 39 Fed. 581; affirming judgment, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 578; Suy. dam v. Smith, 1 Denio (N. Y.) 263. 17 Hess v. Reynolds, 113 U. S. 73, 5 Sup. Ct. 377, 28 L. ed. 927. 18 Jud. Code, § 30, re-enacting 25 St. at L., p. 433, §3. 19 Ibid., § 33, re-enacting U. S. R. S., § 643. |