REMOVAL OF CAUSES - continued. made by authority "derived from any act of congress. McKee v. Rains, 10 Wal. 22. 22. A proceeding under a state statute for the confirmation of a title under a tax sale, however special or summary, may be removed to a federal court by a citizen of another state who is a proper party thereto. Parker v. Overman, 18 How. 137. 23. The right of removal is given only to a defendant who has not subjected himself to the jurisdiction of the state court,-not to the original plaintiff, who, by resorting to it, has become liable under the state law to a cross-action. Hence no removal can be made of a defence or answer, which, by discontinuance of the original suit, has become a proceeding which may go on to trial and judgment, as if in some sense an original suit. West v. Aurora, 6 Wal. 139. REMOVAL OF CAUSES — continued. 29. Where a suit is brought by a township against citizens of the state, and the "unknown owners and holders" of certain municipal bonds, the object of the suit being to have the bonds declared invalid, a citizen of another state, the holder of all the bonds, is entitled to a removal of the suit to the federal court. Harter v. Kernochan, 103 U. S. 562. 30. The removal act of 1875 repealed the second subdivision of Rev. Sts. § 639, permitting removals by aliens, etc., in certain cases. Hyde v. Ruble, 104 U. S. 407; King v. Cornell, 106 U. S. 395. A suit, therefore, in which the defendants are an alien and a citizen of the same state as the plaintiff, cannot be removed by the alien, although as to him there is a separable controversy. King v. Cornell, 106 U. S. 395. 24. A suit to annul a will as a muniment of 31. That an assignment of a judgment was title, and to restrain the enforcement of a decree colorable affords the defendant no ground for readmitting it to probate, is in essential particulars moval to the federal court of the action brought a suit in equity; and if by the law obtaining in in a state court on the judgment, although but for a state, customary or statutory, such a suit can the assignment the diversity of citizenship would be maintained in one of its courts, it may, since have been such as to give the right of removal. the enactment of the removal act of March 2, The validity of the assignment should be attacked 1867 (14 Sts. 558), be removed to the circuit in the state court. Provident Savings Life Ascourt. [WAITE, C. J., and SWAYNE and BRAD-surance Society v. Ford, 114 U. S. 635. LEY, JJ., dissenting.] Gaines v. Fuentes, 92 32. Under the removal act of 1875, §§ 1, 2, U. S. 10. And see Ellis v. Davis, 109 U. S. 485. a suit brought by a citizen of one state against a 25. A proceeding begun in a probate court to corporation of another state, on a fire insurance obtain payment of a claim against an estate in policy, assigned to the plaintiff by one whose course of administration is removable to the citizenship is not stated, is removable to the fedfederal court, if the claimant and the administra-eral court. Claflin v. Commonwealth Insurance tor are citizens of different states. The juris- Co., 110 U. S. 81. diction is not ousted by state statutes assuming to make that of the state courts exclusive. Hess v. Reynolds, 113 U. S. 73. 26. While a proceeding to take private property for public use is an exercise by the state of its sovereign right of eminent domain, with which the United States has no right to interfere by any of its departments, yet, where the sovereign power attaches conditions to the exercise of the right, the inquiry whether the conditions have been observed is a proper matter for judicial cognizance, and if the inquiry assumes the form of a controversy, subject to the ordinary incidents of a civil suit, it may be transferred, like other suits, to a federal court. Mississippi & Rum River Boom Co. v. Patterson, 98 U. S. 403. 27. The right of the defendant to remove a suit under the act of 1875 is not affected by the fact that an injunction to restrain a levy by the defendant on the plaintiff's land had been granted by the state court before the application for removal was made. Bondurant v. Watson, 103 U. S. 281. 28. A replevin suit brought against a sheriff for seizing the plaintiff's goods on process against another is removable from the state to the federal court, the plaintiff and defendant being citizens of different states. Kern v. Huidekoper, 103 U. S. 485. 33. Neither by its own agreement nor by a statute can a corporation be deprived of its constitutional right to remove to the federal court a suit brought against it in the court of a state in which it does business, but of which it is not a citizen, a foreign insurance company, for instance, so agreeing as one of the conditions on which it is permitted to do business in the state. [WAITE, C. J., and DAVIS, J., dissenting.] Home Insurance Co. v. Morse, 20 Wal. 445. 34. A corporation cannot remove into the circuit court an action brought against it by a citizen of a state by whose statutes it is incorporated, although it is also incorporated by earlier statutes in another state. Memphis & Charleston Railroad Co. v. Alabama, 107 U. S. 581. 35. A corporation chartered by one state, which acquires by lease railroad property in another state, does not thereby forfeit its right to remove to the federal court a suit brought against it by a citizen of the latter state. Baltimore & Ohio Railroad Co. v. Koontz, 104 U. S. 5. 36. Suits arising under Constitution or Laws of United States.] The jurisdiction of a circuit court, in a case between citizens of the same state, under the internal revenue acts of July 1, 1862, and March 3, 1863 (12 Sts. 432, 462), removed thereto from a state court under the act of March 2, 1833 (4 Sts. 632), and before REMOVAL OF CAUSES-continued. 37. And where the case is a case clearly so removable, and was pending in the circuit court when that act was passed, but not remanded, it is to be inferred as a conclusion of law that it was the opinion of the judge that it should be retained. Ib. 66 38. Under the act of March 3, 1875, authorizing the removal of suits arising under the constitution or laws of the United States," a suit may be removed when the defendant raises a question involving the construction of a federal act; as, for instance, of an act under which he claims a vested right to maintain a bridge across a navigable river as part of a post road, the suit being brought by a state to compel the removal of the bridge as a nuisance. [MILLER, J., dissenting.] New Orleans, Mobile, & Chattanooga Railroad Co. v. Mississippi, 102 U. S. 135. 42. Nor does Rev. Sts. § 2010, giving one "defeated or deprived of his election" the right, in certain cases, to proceed in the federal courts, affect the case, the petitioner being in office and not out of it. Ib. 43. An action on the official bond of a marshal, founded on a seizure of goods worth more than five hundred dollars, under a writ issued by a court of bankruptcy, is a suit arising under federal laws, and may be removed. Feibelman v. Packard, 109 U. S. 421. 44. Where, in an action against a tax-collector for a seizure of goods, the plaintiff sets up a tender of coupons on state bonds by statute expressly receivable for taxes, and the collector rejoins a subsequent statute forbidding their receipt, a demurrer to the rejoinder raises a federal question laying the ground for a removal to a federal court. Smith v. Greenhow, 109 U. S. 669. 45. An action under a state statute in the nature of proceedings by quo warranto, to test the validity of a consolidation by a state railroad corporation with a foreign corporation under an act of congress, is a suit arising under a federal law within the meaning of the act of 1875. Ames v. Kansas, 111 U. S. 449. 46. A suit on a judgment recovered in a federal court is not necessarily a suit arising under the laws of the United States, which may be removed. Provident Savings Life Assurance Society v. Ford, 114 U. S. 635. otherwise than as they had been construed by the court of such other state, and that, therefore, it is probable that the same construction will be given in the case pending. Chicago & Alton Railroad Co. v. Wiggins Ferry Co., 108 U. S. 18. 39. The right of removal cannot be sustained on the ground that the question involved in the case requires the construction of federal laws, unless the facts are set forth from which the conclusion follows. Where, therefore, in a suit brought to restrain the defendants from depositing the tailings and débris of their mines in a 47. It is no ground for removal that, in a river channel, the defendants assert the right of previous case between other parties, the state removal on the ground that their mining prop-court construed the statutes of another state erty, bought from the United States, could only be worked by the hydraulic process, which necessarily required such deposit, and that their rights were derived from certain enumerated acts of congress, the construction of which, necessarily, was involved in the case, it was held that the right of removal did not appear. [BRADLEY, J., dissenting, on the ground that the facts stated raised a federal question.] Little York GoldWashing & Water Co. v. Keyes, 96 U. S. 199. 40. A question whether one has title to land all right to which the government has granted to a city for certain purposes, the title from the city depending on city ordinances as ratified by state statutes, is not a federal question justifying a removal, under the act of 1875. Hoadley v. San Francisco, 94 U. S. 4. 41. A suit to try the title of an incumbent to a state office, whereto the state authorities have duly declared the incumbent elected pursuant to the state laws, cannot be removed from a state to a federal court under the removal act of 1875 (18 Sts. 470), on his petition, setting forth that, by bribery and threats, colored persons were deterred from voting for him, and that the votes of the parishes where such illegal practices prevailed were rejected. No case arising under the constitution or laws of the United States is shown. Dubuclet v. Louisiana, 103 U. S. 550. 48. Right of Removal as affected by Diversity of Citizenship.] Under § 2, act of 1875, a suit is not removable unless either all the parties on one side are citizens of different states from those on the other side, or there is a separable controversy wholly between citizens of different states. Sewing-Machine Company's Case, 18 Wal. 553; Vannevar v. Bryant, 21 Wal. 41; Ayres v. Chicago, 101 U. S. 184; Blake v. McKim, 103 U. S. 36; Hyde v. Ruble, 104 U. S. 407; Winchester v. Loud, 108 U. S. 130; Shainwald v. Lewis, 108 U. S. 158. 49. A suit, for instance, against several executors, one of whom lives in the same state with the plaintiff, brought to enforce the liability of the testator as surety on a probate bond. Blake v. McKim, 103 U. Š. 336. 50. A suit cannot be removed on the ground of diversity of citizenship, where the real controversy is between citizens of the same state, because of a controversy between citizens of different states which arises out of it, where such controversy is a mere adjunct to the principal controversy, and incapable of a separate existence. REMOVAL OF CAUSES continued. Alexandria First National Bank v. Turnbull, 16 Wal. 190; Corbin v. Van Brunt, 105 U. S. 576. 51. A proceeding, for instance, on a petition under a local statute by one who alleges ownership of property taken in execution against another, and prays to be permitted to intervene and try his title, is not removable. [STRONG, J., dissenting.] Alexandria First National Bank v. Turnbull, 16 Wal. 190. 52. A proceeding to annul the judgment of a state court for irregularity is not removable, such a proceeding being supplementary to, and a continuation of, the original suit. Barrow v. Hunton, 99 U. S. 80. 53. Semble that the fact that such proceeding under the state law can be taken only in the court which rendered the judgment or in the appellate court, while entitled to weight on the question of the jurisdiction of the federal court, is not conclusive. Ib. continued. REMOVAL OF CAUSES 59. Under the second clause of section 2 of the act, where there is a controversy wholly between citizens of different states, which can be fully determined as between them, then either one or more of those actually interested in such controversy may remove the whole suit. [WAITE, C. J., and MILLER and FIELD, JJ., disSenting.] Barney v. Latham, 103 U. S. 205. 60. The right of removal depends on the case disclosed by the pleadings when the petition for removal is filed, and is not affected by the fact that a defendant, who is a citizen of the same state with one of the plaintiffs, may be a proper, but not an indispensable, party to the controversy. Ib. 61. The right of the real parties in interest to a removal is not affected by a joinder with them in the defence of merely formal parties who are citizens of the same state with the plaintiffs. Wood v. Davis, 18 How. 467. 62. Thus, the right of removal will not be de54. Although a suit is founded on the judg-feated where the plaintiff seeks the surrender of ment of a state court, if it has the essential ele- a note, and such co-defendants are persons in posments of an independent suit, and is not merely session thereof merely as agents of the party seekauxiliary and incidental to the original suit, it ing removal, and attorneys employed to collect may be removed to the federal court as may other the same. lb. suits. Bondurant v. Watson, 103 U. S. 281. 55. Where the plaintiff and all of the defendants but one are citizens of the state in which the suit is brought, and the appellate state court dismisses the suit as to all defendants but that one, and orders a trial of the issue left pending between him and the plaintiff, such defendant, under the act of July 27, 1866 (14 Sts. 306), may thereupon remove the cause to the circuit court. Yulee v. Vose, 99 U. S. 539. 56. Where a state statute provides that, on the rendition of a judgment dissolving an insurance company, its assets shall vest in the superintendent of the insurance department, the superintendent is the successor of a company so dissolved in such a sense that, on his being admitted a party to a suit brought against it in another state by citizens thereof, he may remove the suit to the federal court by virtue of his own citizenship. Relfe v. Rundle, 103 U. S. 222. 57. Under the first clause of section 2 of the act of 1875, the parties to a suit are to be ranged on one side or the other without regard to whether they occupy the position of plaintiffs or defendants in the pleadings, for the purpose of testing the right to a removal to the circuit court by reason of diversity of citizenship; and if there are two branches of the suit, and one is disposed of, the case is to be treated, for the purpose of removal, as though the branch disposed of had not existed, and as though the parties to the suit were those whose matters of dispute remain undetermined. Meyer v. Delaware Railroad Construction Co. [Removal Cases], 100 U. S. 457. 58. And under section 1 of the act the rule is the same. Pacific Railroad Co. v. Ketchum, 101 U. S. 289. 63. Nor because a defendant, who is a stranger to the controversy, his relation to it being substantially that of a mere garnishee, is a citizen of the same state as the plaintiff. Bacon v. Rives, 106 U. S. 99. 64. A trustee for holders of bonds secured by a mortgage of a railroad cannot be regarded as a nominal plaintiff whose citizenship may be disregarded in determining whether an action against lessees of the property is removable to the federal court, he still being charged with duties and responsibilities as trustee and never having been devested of his right of action. The removal act of March 2, 1867 (14 Sts. 558), does not change the pre-existing rules which determine who are to be regarded as parties plaintiff or defendant. Knapp v. Troy & Boston Railroad Co., 20 Wal. 117. 65. Where one for whose benefit a trust deed with a power of sale in case of a default in the payment of the debt secured is made, seeks to subject the land to the payment of the debt, the trustee is a necessary party defendant, although he has not qualified by giving bond in accordance with the state law; and therefore the plaintiff and the trustee being citizens of one state, and the debtor a citizen of another state, the debtor cannot remove the suit from the state court to the federal court under the act of 1866, as without such party there can be no final determination of the controversy so far as it concerns" the debtor. Gardner v. Brown, 21 Wal. 36. 66. The trustee of the legal title to land in possession of one claiming ownership thereof is a necessary party defendant to a suit brought for the possession of the land and for a conveyance, REMOVAL OF CAUSES — continued. REMOVAL OF CAUSES - continued. 67. Where a trustee in a deed given to secure a debt due to a citizen of a state other than that 75. Where taxpayers seek to enjoin township of which the grantor is a citizen, proceeds to sell trustees from certifying that the conditions authe property, and the grantor brings a suit to en-thorizing the issue of township bonds in aid join the sale, making the creditor and the trustee parties defendant, and it does not appear that the trustee is not a citizen of the same state as the plaintiff, the suit is not removable to the federal court. The trustee is not a mere nominal party. Thayer v. Life Association of America, 112 U. S. 717. 68. Where one of several heirs-at-law appeals separately from a decree admitting a will to probate, he cannot remove the proceeding to the circuit court although he is a citizen of a state other than that in which the proponents of the will live, other heirs-at-law, who also appeal, being citizens of the same state as the proponents. There is no controversy wholly between citizens of different states. Fraser v. Jennison, 106 U. S. 191. of a railroad have been complied with, and to enjoin the county treasurer from attempting to collect a tax voted in the premises, the trustees and treasurer, as well as the railroad company and a party to whom the company has assigned its interest in the tax, are necessary parties defendant, and all except such assignee being citizens of the same state, he cannot remove the case to the federal court. Sully v. Drennan, 113 U. S. 287. 76. Where one railroad corporation leases its road to another, both are necessary parties to a proceeding instituted by taxpayers to compel the line to be laid where it is claimed that the lessor corporation agreed to lay it in consideration of a vote of municipal aid; and, therefore, the lessor corporation being of the same state as the taxpayers, the proceeding is not removable to the fed69. To a suit to set aside a will, the executors, eral court, although the other corporation is a who are also trustees of a fund for the plaintiff, foreign one. Nor is the case affected by the fact are necessary parties, and if citizens of the same that the statute declares that a corporation operstate with the plaintiff, there is not the diversity ating the road of another shall in all respects be of citizenship requisite for removal to a federal liable as though the road were its own. court, although the defendant legatees and de-cago & Northwestern Railway Co. v. Crane, 113 visees are citizens of another state. American U. S. 424. Bible Society v. Price, 110 U. S. 61. 70. The federal court has jurisdiction, under the act of 1875, of a foreclosure suit between citizens of different states founded on a mortgage given by a citizen of the state wherein the plaintiff's assignor resides, although the assignor, by reason of his citizenship, could not have maintained the suit in the federal court. Mersman v. Werges, 112 U. S. 139. 71. Where, in a foreclosure suit, a personal decree is also asked for, the original mortgagor, and one to whom he has sold the property and who has agreed to pay the debt as a part of the consideration, being made parties defendant, if the former is a citizen of the same state as the plaintiff, the purchaser cannot remove the suit to the federal court. The controversy is not a separable one within the second clause of section 2 of the act of 1875. Ayres v. Wiswall, 112 U. S. 187. 72. Nor is it made such by the fact that the original mortgagor admits the debt, and asks merely that his co-defendant shall be decreed primarily liable, while his co-defendant disputes the debt. lb. 73. Nor can the right of removal be claimed on the ground that the original mortgagor is a nominal, and not a necessary and substantial, party to the suit. Ib. 74. A suit brought by citizens of a state against a corporation of that state and its directors, Chi 77. To a suit by A. to compel the transfer of shares standing in B.'s name on the books of the corporation, both B. and the corporation are necessary parties. There is no separable controversy which one may remove to the federal court, the other being a citizen of the same state as the plaintiff. St. Louis & San Francisco Railway Co. v. Wilson, 114 U. S. 60. 78. The fact that several, sued jointly, sever in their defences, does make separable controversies giving to one defendant the right of removal not existing in favor of all. Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, Id. 57: St. Louis & San Francisco Railway Co. v. Wilson, Id. 60. 79. Nor is it material that the state statute permits judgment to be given against one or more of several defendants sued jointly. Louisville & Nashville Railroad Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, Id. 57. 80. Under the act of 1867 (Rev. Sts. § 639), the removal of a suit pending in a state court between a citizen of the state and a citizen of another state, can be made only on the application of the latter party. Hurst v. Western & Atlantic Railroad Co., 93 U. S. 71; Bible Society v. Grove, 101 U. S. 610. 81. Nor does the act of 1875 affect the rule, where the removal is claimed on account of " prejudice or local influence." Bible Society v. Grove, 101 U. S. 610. REMOVAL OF CAUSES — continued. 82. Jurisdiction of Federal Court What must appear Presumptions Review by Supreme Court.] A petition under the act of March 2, 1867 (14 Sts. 558), for the removal of a cause from a state court, is defective in the allegation of citizenship where as to the parties on one side it alleges merely that "as such executors" they are citizens of a certain state, the citizenship necessary to jurisdiction under that statute, as in other cases where jurisdiction depends on citizenship, being personal and not representative citizenship. Amory v. Amory, 95 U. S. 186. 83. To remove a suit under section 12 of the judiciary act of 1789, it must appear that the requisite diversity of citizenship existed at the time of the beginning of the suit. Phoenix Insurance Co. v. Pechner, 95 U. S. 183. 84. Under the act of 1875, the requisite diversity of citizenship must have existed when the suit was begun and also when the petition for removal was filed. Gibson v. Bruce, 108 U. S. 561; Houston & Texas Central Railway Co. v. Shirley, 111 U. S. 358; Mansfield, Coldwater, & Lake Michigan Railway Co. v. Swan, 111 U. S. 379. 85. Where one acquires from a party an interest in the subject-matter of a suit pending the litigation, and after expiration of the time within which the original parties might have removed it to the federal court, he has no right to a removal. Cable v. Ellis, 110 U. S. 389; Houston & Texas Central Railway Co. v. Shirley, 111 U. S. 358. 86. It is immaterial that the bill filed in a cause removed to the federal court does not show jurisdiction in that court, if the facts conferring the jurisdiction appear from the proceedings in the state court which form part of the record in the federal court. Briges v. Sperry, 95 U. S. 401. 87. Nor is it material that the petition for removal does not show the diversity of citizenship requisite to give jurisdiction, if the fact appear from the record. Bondurant v. Watson, 103 U. S. 281. 88. An averment of residence merely will not suffice, as the terms "citizen" and "resident" are not synonymous. Parker v. Overman, 18 How. 137. 89. Where, the necessary diversity of citizenship existing, an action has been regularly removed under section 12 of the judiciary act of 1789 (1 Sts. 79), the jurisdiction of the federal court is not ousted because it turns out that the action could not, by reason of the exception in section 11 of the act, have been brought originally in the federal court. Green v. Custard, 23 How. 484. 90. Under section 12 of the judiciary act, the defendant may remove the suit to the circuit court, although under section 11 the plaintiff, being assignee of a chose in action, would have been precluded from bringing suit in that court. Bushnell v. Kennedy, 9 Wal. 387. | REMOVAL OF CAUSES-continued. 91. Where the papers in a suit removed from a state court to the circuit court have been destroyed by fire, the court may presume, from the admission of the parties, that the citizenship requisite to give the circuit court jurisdiction was shown by the papers destroyed, no evidence to the contrary appearing. Pittsburg, Cincinnati, & St. Louis Railway Co. v. Ramsey, 22 Wal. 322. 92. If the record contain no copy of a petition for the removal of a cause from a state to a federal court, it will be presumed, on error, leave to remove having been refused, that the petition was defective in its allegations of jurisdictional facts, and that, therefore, it was properly disregarded. Bush v. Kentucky, 107 U. S. 110. 93. Section 5 of the removal act of 1875, providing that if it satisfactorily appears to the circuit court that a suit has been removed from a state court which does not really and substantially involve a controversy properly within the jurisdiction of the circuit court, it may be remanded, and that the order to that effect shall be reviewable by the supreme court, clearly contemplates a review of the decision of the circuit court remanding a cause on the ground that it has not been lawfully removed; the right of review is not limited to cases remanded because the subject-matter of the controversy is not within the jurisdiction of the circuit court. Babbitt v. Clark, 103 U. S. 606. 94. Nor is the right of review limited by the pecuniary value of the matter in dispute. İb. 95. Where the record fails to show the diversity of citizenship necessary to confer the right of removal from the state to the circuit court, the supreme court, on appeal or error, will reverse the decree or judgment of the circuit court without inquiry into the merits of the case, and will order it remanded to the state court. Hancock v. Holbrook, 112 U. S. 229. 96. If it appear that the removal was effected with the consent of both parties, each may be compelled to pay half the costs in the supreme court. Ib. 97.. Time when Application must be made.] Under the removal act of March 2, 1867 (14 Sts. 558), which declares that the petition for removal may be filed " at any time before the final hearing or trial of the suit," where, as in Ohio, a party is entitled to a second trial as of right, the removal may be had after the first and before the second trial. Home Life Insurance Co. v. Dunn, 19 Wal. 214. 98. But not after final judgment of the court of original jurisdiction, and pending an appeal to another state court. Stevenson v. Williams, 19 Wal. 572. And the rule is the same under the act of 1875. 99. Nor while a motion for a new trial is pending and undisposed of. The cause must be actually pending for trial. Vannevar v. Bryant, 21 Wal. 41. 100. After one trial has been had in a state court, the right to another must be perfected be |