§ 556c. Costs upon remand. Ordinarily, when a motion to remand is granted, costs should be imposed upon the removing party. Where the case had been removed by one only of two defendants, the other objecting to the removal, and it was subsequently remanded by agreement to the State court, where a verdict was given for plaintiff against both; it was held that the costs in the Federal court should be taxed against the defendant who had removed the case, but not against the one who had objected thereto.2 Where the remand was made after a verdict against the removing party, no costs were imposed. When a judgment or decree is reversed for want of jurisdiction, costs are usually imposed upon the party who sought the jurisdiction of the court below, either by original process or by removal, whether he is respondent or appellant. Judgment for such costs is entered in the District Court of the United States." The costs imposed upon a remand are: the docket fee of twenty dollars; and such taxable disbursements as have been incurred in the Federal court; 6 but not disbursements incurred in the State court after the petition for removal was filed; 7 except the fees paid the State clerk for certifying to the transcript. In the absence of a stipulation in the bond to that § 556c. 1 Josslyn v. Phillips, 27 Fed. 481. For many years a different rule prevailed in the Southern District of New York. 2 Whilt v. Chester Traction Co., 7 Pa. Dist. R. 693. 3 Ferguson v. Ross, 3 L. R. A. 322, 38 Fed. 161. 4 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 28 L. ed. 462; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380; Peper v. Fordyce, 119 U. S. 469, 30 L. ed. 435; Everhart v. Huntsville College, 120 U. S. 223, 30 L. ed. 623; King Bridge Co. v. Otoe County, 120 U. S. 225, 30 L. ed. 623; Peninsular I. Co. v. Stone, 121 U. S. 631, 30 L. ed. 1020; Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800; Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. ed. 462; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. ed. 528; Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706, 37 L. ed. 602; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. ed. 804; Walker v. Collins, 167 U. S. 57, 42 L. ed. 76, 17 Sup. Ct. 738. 5 Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. ed. 462; reversing decree, Corbin v. Boies, 34 Fed. 692; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. ed. 528; Martin v. Snyder, 148 U. S. 663, 13 Sup. Ct. 706, 37 L. ed. 602. 6 Josslyn V. Phillips, 27 Fed. 481. 7 Young v. Merchants' Ins. Co., 29 Fed. 273. effect, the court cannot, in its order of remand, direct the entry of judgment against the surety without a separate suit, upon which he is entitled to a hearing.8 § 556d. Order of remand. A formal order remanding the case is customary and is the regular practice.1 It seems, however, that such an order is not indispensable, at least where the record does not show a removable case and the State court enters an order dismissing the petition.2 The better practice is to annex to the order of remand the proceedings in the case in the Federal court, or a copy thereof; leaving to the State court the determination of the effect of the steps taken during the pendency of the suit in the court of the United States.3 § 556e. Second motion to remand. After a motion to remand has been once denied, a second motion may be granted, when founded upon facts which have since occurred.1 Thus, a second motion duly made may be granted, when the first was denied as premature.2 Where, after overruling a motion to remand a cause removed because it arose under the laws of the United States, the question arising under those laws had been disposed of by demurrer; it was held that there was no longer any Federal question in the case, and a second motion to remand was granted. After a motion to remand based upon the face of the record had been denied, a second motion because of the alleged collusive joinder of a party was entertained. An order denying a motion to remand may grant leave to renew the same, when the facts are more fully presented. It has been held that the court, of its own motion, may remand a case, although a previous motion to remand upon the same ground has been Fed. 3; Hamblin v. Chicago, B. & 2 Kansas City & T. Ry. Co. v. Interstate Lumber Co., 37 Fed. 3. 3 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. 401. 4 Pennsylvania R. Co. v. Allegheny Valley R. Co., 25 Fed. 113. 5 New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817; Goodnow v. Litchfield, 47 Fed. 753. denied. It has been held that, since the court's jurisdiction is always open to consideration after a motion to remand a case has been denied, it may be granted upon the same facts by the same or another judge. After a motion to remand has been granted, when cases subsequently arise that justify the removal, which is again made, a second motion to remand will be denied.8 § 557. Review of order of remand. The Judicial Code of March 3rd, 1887, provides that "no appeal or writ of error from the decision of the District Court so remanding such cause shall be allowed."1 The Supreme Court of the United States cannot review immediately, either by appeal or writ of error, an order of a District Court, or of a Circuit Court of Appeals, remanding a cause. The fact that the remand is made upon a decision overruling a demurrer does not give a right to a review by the Supreme Court. The Supreme Court of the United States can 6 Weldon v. Fritzlen, 128 Fed. 608, 611; reversed upon another point, C. C. A., 135 Fed. 650; reversal affirmed without passing on this point, Fritzlen v. Boatmen's Bank, 212 U. S. 364, 366, 53 L. ed. 551, 554. 7 Weldon v. Fritzlen, 128 Fed. 608, 611; reversed on another point, C. C. A., 135 Fed. 650; reversal affirmed without passing on this point, Fritzlen v. Boatmen's Bank, 212 U. S. 364, 366, 52 L. ed. 551, 554; Gaugler v. Chicago, M. & P. S. Ry. Co., 197 Fed. 79, where the second judge granted leave to renew the motion. Phillips v. Western Terra Cotta Co., 174 Fed. 873. 8 Fritzlen v. Boatmen's Bank, 212 U. S. 364, 53 L. ed. 551. U. S. 45, 10 Sup. Ct. 517, 33 L. ed. 3 German Nat. Bank v. Speckert, 181 U. S. 405, 45 L. ed. 926. 4 Gurnee v. Patrick County, 137 U. S. 141, 11 Sup. Ct. 34, 34 L. ed. 601; Birdseye v. Schaeffer, 140 U. S. 117, 11 Sup. Ct. 885, 35 L. ed. 402. not, by a writ of error to the final judgment of a State court, review an order remanding the cause, which was made by a Federal court.5 8 Under a previous statute, it was said that the question whether the defendant had a reasonable excuse for his delay in filing the transcript rested in the discretion of the court to which the case was removed and would not be reviewed by appeal or writ of error, unless it clearly appeared that there was an abuse of such discretion. An order remanding a cause cannot be reviewed by an application for the writ of mandamus,7 or of prohibition; nor by a bill in equity for an injunction.9 The Circuit Court of Appeals cannot review an order remanding a cause.10 It has been held by a State court that, after a Court of the United States has entered an order remanding a cause, it cannot set the same aside and recover jurisdiction of the case.11 When the Federal court had set aside its order or remand at the term when the same was made, and meanwhile plaintiff had filed a copy of the first order in the State court and obtained a judgment there, which was affirmed on appeal by the Supreme Court of the State; it was held that a motion by the plaintiff in the Federal court, to strike the cause from its docket, would not be deceived until the defendant had had an opportunity to bring the judgment of the State court before. the Supreme Court of the United States for review.12 § 557a. Review of proceedings of the State courts when the right of removal has been denied. When a case has been re 5 Missouri Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536; McLaughlin Brothers v. Hallowell, 228 U. S. 278, 286; Yankaus v. Feltenstein, 224 U. S. 127, 133. 6 McLean v. St. Paul & C. C. Co., Fed. Cas. No. 8,892 (16 Blatchf. 309); affirmed St. Paul & C. R. Co. v. McLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. ed. 703. Ex parte Hoard, 105 U. S. 578, 26 L. ed. 1176; Re Sherman, 124 U. S. 364, 8 Sup. Ct. 505, 31 L. ed. 423; Re Pennsylvania Co., 137 U. S. 451, 34 L. ed. 738. 8 Chesapeake & O. R. Co. V. White, 111 U. S. 134, 28 L. ed. 378. 9 Pacific Live Stock Co. v. Lewis, 241 U. S. 440, 447. 10 Re Coe, 49 Fed. 481, 1 C. C. A. 326, 5 U. S. App. 6; Cole v. Garland, 107 Fed. 759, 46 C. C. A. 626. 11 Chisolm v. Propeller Tow-Boat Co. of Savannah, 59 Sup. C. 549, 38 S. E. 156. 12 Empire Min. Co. v. Propeller Tow-Boat Co., 108 Fed. 900. manded to the State court, the Supreme Court of the United States cannot upon writ of error or appeal reverse the judgment because the suit should have been retained in the Federal court.1 The same rule prevails when the State court has entered judgment before a remand subsequently granted and the District Court of the United States has assumed no jurisdiction except to stay the proceedings pending the decision upon the application for remand. If the State court proceeds to judgment in a cause, notwithstanding an application for removal, and there has been no remand by the Federal court, such decision of the State court can be reviewed by the Supreme Court upon writ of error to the highest court of the State, in which a decision upon the question could have been had. The subsequent appearance in the State court by the defendant and his defense to the suit does not waive his right to avail himself of such an error; but if he seeks affirmative relief in the State court, he makes such a waiver.5 Where the petition for the removal was reserved for the decision of the State Supreme Court, which dismissed it and remanded the cause to the Inferior court for further proceedings according to law, it was held that the Supreme Court of the United States could not review this decision until the termination of the proceedings. In the absence from the transcript of the petition for the removal, it will be presumed that it was defective." § 557a. 1 Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S. 556, 580583; McLaughlin Brothers v. Hallowell, 228 U. S. 278, 286. 2 Yankaus v. Feltenstein, 244 U. S. 127, 133, in which the author was counsel. 3 U. S. R. S., § 709; Gordon v. Longest, 16 Peters 97, 10 L. ed. 900; Kanouse v. Martin, 14 How. 23, 14 L. ed. 310, 15 How. 198, 14 L. ed. 660; Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. ed. 962; Oakley v. Goodnow, 118 U. S. 43, 6 Sup. Ct. 944, 30 L. ed. 61; Missouri Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 582, 40 L. ed. 539, 542; Missouri, K. & T. Ry. Co. v. Missouri R. R. & Warehouse Com 'rs, 183 U. S. 53, 46 L. ed. 78; Southern Ry. Co. v. Allison, 190 U. S. 326, 47 L. ed. 1078; Cincinnati & T. Ry. Co. v. Bohon, 200 U. S. 221, 50 L. ed. 448; State ex rel. Jumel V. Johnson, 29 La. Ann. 399. 4 Insurance Co. v. Dunn, 19 Wallace 214, 22 L. ed. 68; Removal Cases, 100 U. S. 457, 25 L. ed. 593. 5 Texas & Pac. Ry. Co. v. Eastin, 214 U. S. 153, 53 L. ed. 946. 6 Kimball v. Evans, 93 U. S. 320, 23 L. ed. 920. 7 Bush v. Kentucky, 107 U. S. 110, 1 Sup. Ct. 625, 27 L. ed. 354. |