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The courts of the United States have no probate jurisdiction.38 When, however, a statute or customary law of a State gave its courts jurisdiction of a suit to establish a lost will, or to set aside a probate of a will or to annul a will, it was held under former statutes that the Federal court might take jurisdiction of such a suit upon removal.39 A Federal court cannot undertake the general administration of a decedent's estate.

cannot remove the condemnation proceeding. Mt. Washington Ry. Co. v. Coe, 50 Fed. R. 637. That in New Jersey a land-owner who has appealed from the decision of the commissioners should be regarded as the defendant and may remove the appeal, but that he waives his right of removal by having the record of the proceedings sent to the State Supreme Court by certiorari. Hudson River R. & T. Co. v. Day, 54 Fed. R. 545. That in Massachusetts a proceeding for the assessment of damages suffered by millers by reason of the diversion of water was removable. Banigan v. Worcester, 30 Fed. R. 392. That condemnation proceedings are removable in North Carolina, Postal Tel. C. Co. v. So. Ry. Co., 88 Fed. R. 803; in Colorado, Searle v. School District, 124 U. S. 197; Colorado Midland Ry. Co. v. Jones, 29 Fed. R. 193; in Michigan, where they should be removed from the Probate Court, Mineral Range R. Co. v. Detroit & L. S. Copper Co., 25 Fed. R. 515; in Missouri, Kansas City & T. R. Co. v. Interstate Lumber Co., 37 Fed. R. 3; in Oregon, No. Pac. Terminal Co. v. Lowenberg, 18 Fed. R. 339; in Indiana, Terre Haute v. Evansville, F. & T. H. R. Co., 106 Fed. R. 551; and in Iowa, where, if the landowner alone appeals, the railway company is considered as the defendant. Kirby v. Chicago & N. W. R. Co., 106 Fed. R. 551. The value placed upon the land by the owner, unless made in bad faith, is the value of the matter in dispute. Postal Tel. C. Co. v. So. Ry. Co., 88 Fed. R. 803.

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The demand for a jury trial under the North Dakota statute is equivalent to the filing of an answer, and after the time to do this had expired, it was held too late to remove the cause. Minneapolis, St. P. & S. S. Ry. Co. v. Nestor, 50 Fed. R. 1.

38 Fouvergne v. New Orleans, 18 How. 70; Southworth v. Howard, 11 Rep. 46; Reed v. Reed, 31 Fed. R. 49. But see Brodhead v. Shoemaker, 44 Fed. R. 518.

39 Gaines v. Fuentes, 92 U. S. 10; Southworth v. Howard, 11 Rep. 46, under the Act of 1875. See also Ellis v. Davis, 109 U. S. 485; Reed v. Reed, 31 Fed. R. 49; Foster's Federal Judiciary Acts, pp. 4, 27.

It has been held that appeals from the decrees of Probate Courts admitting wills to probate are not removable from the courts of New Hamp shire, In re Cilley, 58 Fed. R. 977; Pennsylvania, In re Aspinwall's Estate, 85 Fed. R. 851; and Arkansas, Wahl v. Franz (C. C. A.), 100 Fed. R. 680. As to Indiana see Copeland v. Bruning, 72 Fed. R. 5. But such proceedings in Georgia were held to be removable from the appellate court. Brodhead v. Shoemaker, 44 Fed. R. 518. Jurisdiction was taken of a proceeding under the Oregon statutes to contest a will. Richardson v. Green (C. C. A.), 61 Fed. R. 423. In Alabama upon a contest on the admission of a will to probate, the person applying for the probate is the plaintiff, and he cannot remove the cause. McDonnell v. Jordan, 178 U. S. 229, 237.

4 Byers v. McAuley, 149 U. S. 608;

A proceeding in a court of probate under a statute providing for the trial there of claims against a decedent's estate, may be removed, although the State statute provides that such a court of probate shall have exclusive jurisdiction over such proceedings. An action in the nature of a quo warranto may be removed when it arises under the Constitution and laws of the United States.42 It seems that a proceeding upon an application for a habeas corpus cannot.43 It seems that no removal can be had, since the Act of 1887, of a suit of which the Circuit Court could not take original jurisdiction, such as an application for a mandamus; " a creditor's bill when the plaintiff has not reduced his claim to judgment; or an action for a divorce.46 A suit which is ancillary and supplemental to a suit previously brought in a State court, and which is so connected with the original suit as to form an incident to it and be substantially a continuation of it, cannot be removed into a Circuit Court of the United States unless the original suit has been previously or may be simultaneously removed." A bill to

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supra, § 9. Proceedings to deter mine whether the estate of a decedent is separate or community property, In re Foley, 80 Fed. R. 949; and, it seems, proceedings upon the application of the widow for a year's support, McElmurray v. Loomis, 31 Fed. R. 395, cannot be removed. But it has been held that a special proceeding by an administrator to ob tain a license to sell land may be removed, although not within the original cognizance of the Federal court: and that such a proceeding, although treated by the State court as equitable in its nature, must be placed on the common-law docket of the Federal court. Elliott v. Shuler, 50 Fed. R. 454.

41 Hess v. Reynolds, 113 U. S. 73; Clark v. Bever, 139 U. S. 96, 102. See Wilson v. Smith, 66 Fed. R. 81.

42 Ames v. Kansas, 111 U. S. 449; Illinois v. Ill. Cent. R. Co., 33 Fed. R. 721. But it has been held that a quo warranto brought to test a title to office in a corporation organized in

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the State where the suit was brought cannot be removed because of a difference of citizenship between defendant and relator. Place v. Illinois (C. C. A.), 69 Fed. R. 481.

43 Kurtz v. Moffitt, 115 U. S. 487; Snow v. U. S., 118 U. S. 346, 354. 44 Indiana ex rel. City of Muncie v. L. E. & W. Ry. Co., 85 Fed. R. 1.

45 Cates v. Allen, 149 U. S. 451; First Nat. Bank v. Praegler (C. C. A.), 91 Fed. R. 689.

46 Barber v. Barber, 21 How. 582, 584; Johnson v. Johnson, 13 Fed. R. 193; Bowman v. Bowman, 30 Fed. R. 849. A suit to enforce a decree awarding alimony might perhaps be removed. Ibid.

47 Barrow v. Hunton, 99 U. S. 80, 82; Webber v. Humphreys, 2 Dill 223; Poole v. Thatcherdeft, 19 Fed. R. 49; Buford v. Strother, 3 McCrary, 253; s. c., 10 Fed. R. 406; Flash v. Dillon, 22 Fed. R. 1; Chapman v. Barger, 4 Dill. 557; Wolcott v. Aspen M. & S. Co., 34 Fed. R. 821; Richmond & D. R. Co. v. Findlev, 32

set aside a judgment or decree of a State court for mistake 48 or fraud which was not and could not, with the exercise of reasonable diligence, have been discovered before the decree passed beyond the control of the State court, may be removed.49

Fed. R. 641; Kalamazoo W. Co. v. Snavely, 34 Fed. R. 823; Marshall v. Holmes, 141 U. S. 589; supra, § 21. Such are statutory proceedings supplementary to execution, Webber v. Humphreys, 5 Dill. 223; Poole v. Thatcherdeft, 19 Fed. R. 49; Buford v. Strother, 3 McCrary, 253; s. C., 10 Fed. R. 406; Flash v. Dillon, 22 Fed. R. 1; including the appointment of a receiver in such supplementary proceedings. Cœur d'Alene Ry. & N. Co. v. Spalding, 93 Fed. R. 28. A petition by the defendant after judgment for plaintiff in ejectment to have the defendant's damages allowed to him. Chapman v. Barger, 4 Dill. 557. A suit in equity by the tenant under a lease pending an action of ejectment to set up a defense which might by the State practice have been pleaded in the action of ejectment. Richmond & D. R. Co. v. Findley, 32 Fed. R. 621. See Cable v. Ellis, 110 U. S. 389; Johnson v. Christian, 125 U. S. 642. A proceeding by the plaintiff, after a decree establishing his right to the products of a mine, to enforce his rights under the decree against the defendant to the original suit and a third person who claims a superior title by purchase. Wolcott v. Aspen M. & S. Co., 34 Fed. R. 821. A proceeding against the directors of a defunct railway company which has passed out of existence pending a suit against it, seeking to hold them liable to the original plaintiff under a State statute to the extent of its assets in their hands. Houston & Texas Cent. R. Co. v. Shirley, 111 U. S. 358. See also Hospes v. N. W. Mfg. & C. Co., 22 Fed. R. 565. But

it was held that removals can be had of a motion for an execution against a stockholder under Mo. R. S., § 2517, after judgment and return of execution against the corporation, Lackawana C. & L. Co. v. Bates, 56 Fed. R. 737; a bill in equity setting up a prior judgment for damages for a nuisance and a pending action at law for the same purpose, which prays consolidation, a perpetual injunction and damages subsequent to the commencement of the pending action at law, Ladd v. West, 55 Fed. R. 353; and a bill to set aside a decree of a State court for fraud which does not show that the facts constituting the fraud were not within the knowledge of the complainant before the rendition of the decree, or could not have been discovered in time to bring them in some appropriate mode to the attention of the State court while the decree was within its control. Nougué v. Clapp, 101 U. S. 551; Graham v. Boston H. & E. R. Co., 118 U. S. 161, 177; Marshall v. Holmes, 141 U. S. 589, 600.

48 Pelzer Mfg. Co. v. Hamburg B. F. Ins. Co., 62 Fed. R. 1.

49 Marshall v. Holmes, 141 U. S. 589, 600; Johnson v. Waters, 111 U. S. 640. 667; Arrowsmith v. Gleason, 129 U. S. 86, 101; Carver v. Jarvis-Conklin Mtge. Tr. Co., 73 Fed. R. 9. So it has been held of a proceeding to enjoin the violation of a decree by a stranger to the suit. Ward v. Congress Const. Co. (C. C. A.), 99 Fed. R. 598. And a feigned issue in Pennsylvania to try the validity of a judgment obtained by a creditor. Fuller v. Wright, 23 Fed. R. 833.

A creditor's bill founded on a State judgment may be removed.50 A suit in which a State court has appointed a receiver may be removed; and so may a suit for the appointment of a receiver ancillary to one previously appointed by a court of another State.52

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A case where the record does not show that the Federal court could otherwise take jurisdiction cannot be removed by consent; 53 and where consent is given because of prejudice or local influence, an order of removal upon that ground must be obtained. An agreement by a corporation not to remove into a Federal court any suit brought against it within a State (is void.55 A State has the power to exclude from its limits any corporation not engaged in interstate or international commerce and not in the service of the United States; and it seems that the courts will not examine into the reasons for such exclusion, provided the statute under which it is made is constitutional, although the corporation is excluded because it has removed a case into a Federal court.56 A State court cannot enjoin the removal of a case.57 A stipulation not to remove a specified suit into a Federal court has been held valid.58

§ 384. Separable controversies. To entitle a defendant to a removal on account of the separability of a controversy from the rest of the case, there must exist a separate cause of action on which a separate suit could be brought and complete relief afforded distinct from the rest of the case, and of which

50 Kalamazoo Wagon Co. v. Snavely, 535: Gloucester F. Co. v. Pennsyl34 Fed. R. 823.

vania, 114 U. S. 196; Phila. F. Ass'n v. New York, 119 U. S. 110; Barron v. Burnside, 121 U. S. 186; Chicago, M. & St. P. Co. v. Becker, 32 Fed. R. 849; So. Pac. Co. v. Denton, 146 U. S. 202, 207; In re Foley, 76 Fed. R. 390. See Am. Law Review for May-June, 1892, and September-October, 1892.

51 In re Iowa & M. Const. Co., 10 Fed. R. 401. Whether an action of replevin brought against a State sheriff to recover property on which he has levied by writ of attachment can be re'moved, has been doubted. Burnham v. First Nat. Bank (C. C. A.), 53 Fed. R. 163. 52 Shinney v. N. A. Sav. L. & B'g Co., 445; Barron v. Burnside, 121 U. S. 186. 97 Fed. R. 9. 57 Blydenstein v. N. Y. S. & Tr. Co.,

56 Insurance Co. v. Morse, 20 Wall.

53 People's Bank v. Calhoun, 102 59 Fed. R. 12. A stay in a State court U. S. 256. does not prevent a removal. Hulbert

54 Olds Wagon Works v. Benedict v. Russo, 64 Fed. R. 8. (C. C. A.), 67 Fed. R. 1.

55 Paul v. Virginia, 8 Wall. 169; Doyle v. Continental Ins. Co., 94 U. S.

58 Hanover Nat. Bank v. Smith, 13 Blatchf. 224.

all the parties on one side are citizens of different States from all the parties on the other.1 The case must be separable into parts, so that in one of the parts a controversy will be pre

$384. 1 It has been held that the following cases presented separable controversies and consequently could be removed: A suit for a conveyance of an undivided interest in lands held by a corporation together with an accounting by such corporation of a similar proportion of the proceeds of lands by it sold, and also for an accounting by individual defendants for the proceeds of the sale of lands acquired under the same title and sold by them before title was acquired by the defendant corporation. Barney v. Latham, 103 U. S. 205. A suit to establish an indebtedness against an insolvent corporation and for judgment against a second defendant which had assumed the indebtedness of the first corporaton. Mecke v. Valleytown M. Co. (C. C. A.), 93 Fed. R. 697; but see Lewis V. Weidenfeld, 76 Fed. R. 145. A statutory proceeding to recover the possession of land, Stanbrough v. Cook, 38 Fed. R. 369; or to quiet title, Bacon v. Felt, 38 Fed. R. 870; Bates v. Carpentier, 98 Fed. R. 452; but see Little v. Giles, 118 U. S. 596; or to condemn property for public use, even where the bill alleged that all of the defendants made some claim under a certain deed, when it did not limit the controversy to the validity of such deed, Bacon v. Felt, 38 Fed. R. 570; Pacific R. R. Removal Cases, 115 U. S. 223; N. Y., N. H. & H. Co. v. Cockcroft, 46 Fed. R. 881; N. Pac. T. Co. v. Lowenberg, 18 Fed. R. 339; Chicago v. Hutchinson, 15 Fed. R. 129; Sugar Creek P. B. & P. C. R. Co. v. McKell, 75 Fed. R. 34; where the defendants claimed under different titles and did not set up a joint defense. A suit to rescind a subscription to stock of an insolvent railroad

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company seeking a return of the consideration advanced by the subscriber and a declaration that the plaintiff was entitled to a first lien upon the railroad, which had been bought by another company, to which suit a party that had subsequently begun proceedings to foreclose a lien claimed for the construction of the railroad had been made a defendant. Foster v. Chesapeake & M. Ry. Co., 47 Fed. R. 369. But see Fidelity I., Tr. & S. D. Co. v. Huntington, 117 U. S. 280; In re San Antonio & A. P. Ry. Co., 44 Fed. R. 145; Turnbull Wagon Co. v. Linthicum Carriage Co., 80 Fed. R. 4. A suit by a second chattel mortgagee asking for a specific attachment, which was issued against the goods, and that his mortgage be declared paramount to the first mortgage in which the mortgagor and the first mortgagee were defendants. Capital City Bank v. Hodgin, 22 Fed. R. 209. Contra, Fidelity L., Tr. & S. D. Co. v. Huntington, 117 U. S. 280; Marsh v. Atlanta & F. R. Co., 53 Fed. R. 168; Thurber v. Miller (C. C. A.), 67 Fed. R. 371; Maher v. Tower Hotel Co., 94 Fed. R. 225; Bissell v. Canada & St. L. Ry. Co., 39 Fed. R. 225; Sharon v. Tucker, 144 U. S. 533; Turnbull Wagon Co. v. Linthicum C. Co., 80 Fed. R. 4; Oakes v. Yonah L. & Min. Co., 89 Fed. R. 243. A suit to enforce a right of subrogation to several policies of fire insurance and to collect losses upon them resulting from the same fire. Insurance Co. of N. A. v. Delaware Mut. Ins. Co., 50 Fed. R. 243. A suit to recover the possession of town bonds when the party in possession disclaimed all interest in them except a lien for storage and counsel fees, while one of the depos

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