could not contend for a contrary decision upon the same point in the Federal court upon a motion by plaintiff to remand the cause. Where a party had procured a removal upon an averment that the amount in controversy was over $2,000, exclusive of interests and costs. It has been held that he could not suggest to the Circuit Court of Appeals that there was no jurisdiction below, because the judgment finally rendered was less than the jurisdictional amount.6 7 It has been held that there can be no waiver of the objection that the suit arises under the Employer's Liability Law; but where the defendant had insisted till the close of the trial that the case did not so arise but arose under the State statutes it was not allowed to make such objection for the first time upon its writ of error.8 It has been held that the objection to the jurisdiction, because neither party is a resident of the district, is waived by a general appearance by the plaintiff in the Federal court before his motion to remand. Such a waiver is made by the service of a subsequent pleading,10 or any other proceeding taken by him,11 such as, stipulating for a continuance; 12 making up the issues; taking out a commission; 14 noticing a demurrer for argument; 15 setting the case down for hearing; 16 consenting to the filing of a pleading by the defendant out of time.17 It has been held that the entry of a special appearance for the purpose of 5 Beadleston v. Harpending, 32 Fed. 644. See supra, § 541. 6 Eustis v. Henrietta, 74 Fed. 577, 20 C. C. A. 537, 41 U. S. App. 182. 7 Mitchell v. Southern Ry. Co., 247 Fed. 819; Deuel v. Chicago, B. & Q. R. Co., 253 Fed. 857.. 8 Illinois Cent. R. Co. v. Egan, C. C. A., 203 Fed. 937. 9 Philadelphia & Boston Face Brick Co. v. Warford, 123 Fed. 843; Corwin Mfg. Co. v. Henrici Washer Co., 151 Fed. 938; supra, § 61. 10 Matter of Moore, 209 U. S. 490, 52 Fed. 904; Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 53 L. ed. 984; Proctor Coal 13 moving to retire a case from the docket does not waive the plaintiff's right to a remand for any cause. 18. Where one of two defendants, sued upon a joint and several obligation, removed the case, and the plaintiff, without protest, proceeded to trial and took judgment against him; it was held that this was a consent to a severance of the joint, into two several actions, and that a remand should not be ordered,19 The waiver may be made by an infant through his guardian ad litem 20 The removal of the case waives any objection by the defendant that he was sued in the improper district,21 provided that service of the summons was properly made upon him.22 He cannot, by filing a general appearance, improve his position.23 A motion to remand because the petition for the removal was filed too late is waived by laches; 24 such as the delay of a year without excuse; 25 and probably by taking any subsequent proceeding in the cause after the filing of the transcript, such as 18 Higson v. North River Ins. Co., 184 Fed. 165. 19 Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co., C. C. A., 80 Fed. 766. 20 Matter of Moore, 209 U. S. 490, 52 L. ed. 904. But see Woolridge v. McKenna, 8 Fed. 650. 21 De Valle Da Costa v. Southern Pac. Co., 160 Fed. 216; Clark v. Southern Pac. Co., 175 Fed. 122; Sagara v. Chicago, R. I. & P. Ry. Co., 189 Fed. 220; H. J. Decker, Jr., & Co. v. Southern Ry. Co., 189 Fed. 224. 22 Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517. See §§ 170, 554, 555, supra. 23 Tierney v. Helvetia Swiss Fire Ins. Co., 163 Fed. 82. 24 French v. Hay, 22 Wall. 238, 22 L. ed. 854; Miller v. Kent, 18 Fed. 561 (20 Blatchf. 508); Baltimore & O. R. Co. v. Ford, 35 Fed. 170; Wyly v. Richmond & D. R. Co., 63 Fed. 487; Guarantee Co. of North Dakota v. Hanway, C. C. A., 104 Fed. 369, 44 C. C. A. 312. See Hervey v. Illinois Midland Ry. Co., 3 Fed. 707. Where the plaintiff, in ignorance of his right to remand the case because the petition for a removal was made too late, filed an answer in the Federal court; he was permitted to withdraw this and move to 'remand, it appearing that he had acted in good faith. Collins v. Stott, 76 Fed. 613. 25 Miller v. Kent, 18 Fed. 561 (20 Blatchf. 508); Baltimore & O. R. Co. v. Ford, 35 Fed. 170; Wyly v. Richmond & D. R. Co., 63 Fed. 487. It was held that a delay of fifteen months by the plaintiff did not waive his right to remand a cause because of the defendant's failure to file the transcript, although the plaintiff himself produced the same for filing at the time that he made such motion. McGregor v. McGillis, 30 Fed. 388. a consent to a transfer of the cause to the equity docket and its reference to a special master to be considered as an intervention in a previous suit in equity; 26 or a demand for trial; 27 or a trial.28 Such an objection cannot be taken by either party for the first time upon an appeal.29 Defects in the petition 30 or in the bond 31 or in the other proceedings may be waived when the record or evidence shows the jurisdictional facts. § 556b. Evidence upon motion to remand. It has been said, that, in the absence of a general rule of court upon the subject, proper practice requires that when issue is joined upon the averments of fact in a removal petition, application should be made to the court, as a preliminary matter, to fix the procedure to be followed in determining such issues of fact, whether by affidavit, oral testimony, depositions, or otherwise.1 If the court has reason to doubt the existence of the jurisdictional facts, it has the right to examine the parties upon that question 2 or to direct a plea in abatement to be filed and heard, or that testimony,* or depositions be taken upon the point.5 When any allegation in the petition is denied, the burden or proof rests on the petitioner. This rule applies where the re 26 Wyly v. Richmond & D. R. Co., 63 Fed. 487. 27 Baltimore & O. R. Co. v. Ford, 35 Fed. 170. 28 Guarantee Co. of North Dakota v. Hanway, 104 Fed. 369, 44 C. C. A. 312. 29 Knight v. International & G. N. Ry. Co., C. C. A., 61 Fed. 87. 30 White v. Chase, C. C. A., 201 Fed. 896; supra, § 545. 31 Hervey v. Illinois Midland Ry. Co., 3 Fed. 707; Grow v. Wiman, 3 N. Y. St. Rep. 281; Probst v. Cowen, 91 Fed. 929. Supra, § 547. § 556b. 1 Jones v. Casey-Hedges Co., 213 Fed. 43, 48 E. D. Tenn., S. D., per Sanford, J., citing Welch v. Cincinnati, N. O. & T. P. Ry. Co., 177 Fed. 760, 765; Lewis v. Cincinnati, N. O. & T. P. Ry. Co., 192 Fed. 654, 659; and by analogy Wet more v. Rymer, 169 U. S. 115, 18, 3 Gribble v. Pioneer Press Co., 15 Fed. 689. 4 Harrington v. Great Northern Ry. Co., 169 Fed. 714, 716. 5 McGuire v. Great Northern Ry. Co., 153 Fed. 434, 435; Harrington v. Great Northern Ry. Co., 169 Fed. 714, 716. 6 Carson v. Dunham, 121 U. S. 421, 7 Sup. Ct. 1030, 30 L. ed. 992; Health v. Austin, Fed. Cas. No. 6,305 (12 Blatchf. 320); Copeland v. Memphis & C. R. Co., Fed. Cas. No. 3,209 (3 Woods 651); Davies v. Wells, 134 Fed. 139; New Castle v. Western Union Tel. Co., 152 Fed. 569. moval is based upon the ground of a fraudulent joinder of defendants." If the issue is not tried upon oral testimony, affidavits, or depositions, by both parties may then be considered; and a verified petition of removal will prevail against an unverified denial.10 Statements in affidavits or other papers, or proceedings by either party, may be offered in evidence by the other, as admissions for or against the motion to remand.11 An erroneous description of the plaintiff's citizenship, in a pleading or other proceeding in the State court, will not estop him from proving the truth in support of a motion to remand.12 When the permanent residence and citizenship of a party, at a date shortly before the beginning of the suit, is proved; the presumption is that the same continue until there is proof of a change.13 Proof of residence in a place is presumptive evidence of citizenship there, 14 and will countervail a denial of citizenship made for want of knowledge, information or belief.15 It seems that where defendant alleges a change of complainant's citizenship or residence, he must show both residence in the new locality and the intention to remain there.16 An official passport, certifying to the naturalization of the defendant as a citizen of , a certain country, when accompanied by his affidavit, is prima 7 Welch v. Cincinnati, N. O. & T. P. Ry. Co., 177 Fed. 760; Jacobson v. Chicago, R. I. & P. Ry. Co., 176 Fed. 1004; Foster v. Coos Bay Gas & El. Co., 185 Fed. 979. See supra, $547a. 8 Wecker v. National Enameling Co., 204 U. S. 176, 27 Sup. Ct. 184, 51 L. ed. 430, 9 Ann. Cas. 757; Smith v. Crosby Lumber Co., 46 Fed. 819; Lewis v. Cincinnati, N. O. & T. P. Ry. Co., 192 Fed. 654; City of Seattle v. Great Northern Ry. Co., 239 Fed. 1009. 9 McGuire v. Great Northern Ry. Co., 153 Fed. 434, 435; Harrington v. Great Northern Ry. Co., 169 Fed. 714, 716. 10 Heath v. Austin, Fed. Cas. No. 6,305, 12 Blatchf. 320. 11 Chicago & N. W. R. Co. v. Ohle, 117 U. S. 123, 6 Sup. Ct. 632, 29 L. ed. 837. See Reynolds v. Adden, 136 U. S. 348, 10 Sup. Ct. 843, 34 L. ed. 360. 12 Egerton v. Starin, 91 Fed. 932. See Reynolds v. Adden, 136 U. S. 348, 10 Sup. Ct. 843, 34 L. ed. 360. 13 Heath v. Austin, Fed. Cas. No. 6,305 (1 Blatchf. 320); Collins v. City of Ashland, 112 Fed. 175. 14 Blair v. Silver Peak Mines, 93 Fed. 332; denying rehearing, 84 Fed. 737; Hanchett v. Blair, 100 Fed. 817, 41 C. C. A. 76; Collins v. City of Ashland, 112 Fed. 175. 15 Hanchett v. Blair, 100 Fed. 817, 41 C. C. A. 76. 16 Gaddie v. Mann, 147 Fed. 955. facie evidence that he has complied with the statutes regulating naturalization there.17 It has been held that a positive averment on oath, by the counsel for the removing party, that the State judge, under a rule providing that the special term is always open when the judge is present, was holding a special term of his court when the petition was presented to him is sufficient to show that the court was then in session, although such judge, on the presentation of the papers, made an order to show cause, which was in form an order of the court.18 When the time of the proceedings for the removal is in question, pleadings in the State court, although they have been taken out of the record by stipulation, may be used upon a motion to remand, in order to show what had been done in the State court before the application for removal and to prove that such application was made too late.19 An answer filed in the State court after the petition and bond had been presented was disregarded 20 Affidavits or other evidence as to matters which have occurred since the removal cannot be considered except to show laches, waiver or estoppel.21 It has been said: that the court will take judicial notice of the fact that one of the parties is a receiver appointed by it; 22 that it will take judicial notice of the State statutes, but not of the rules of the State courts; 28 and that, when the allegations of the complaint do not clearly show that the cause arises under the Constitution or laws of the United States, the court may take judicial notice of a State statute, which is not therein mentioned, to which reference is made in the petition for removal.24 Evidence upon prejudice and local influence, and the rules of decision upon the same, have been previously discussed.25 17 Maloy v. Duden, 25 Fed. 673. 18 La Page v. Day, 74 Fed. 977. 19 Wilkinson v. Delaware, L. & W. R. Co., 23 Fed. 562. 20 Phillips v. Western Terra Cotta Co., 174 Fed. 873. 21 West Side R. Co. v. California Pac. R. Co., 202 Fed. 331. 22 Pitkin v. Cowen, 91 Fed. 599, 23 Randall v. New England Order of Protection, 118 Fed. 782. See § 329, supra. 24 State v. Coosaw Min. Co., 45 Fed. 804; decree affirmed, Coosaw Min. Co. v. State, 144 U. S. 550, 12 Sup. Ct. 689, 36 L. ed. 537. 25 Supra, $549. |