jurisdiction of a cause by removal or original process, an amendment bringing in new parties or a new cause of action will not. ordinarily defeat the jurisdiction; 28 nor will a change of citizenship of either party defeat the jurisdiction after it has once attached.29 It has been held that where only part of the defendants have a citizenship different from that of the plaintiff, he may, after a removal, discontinue as to them and then have the case remanded.30

32

The decisions of the State court, on a demurrer or otherwise, made in the case before its removal will ordinarily be followed by the Circuit Court." If it is desired to renew a motion which the State court has denied, leave to make the application should first be applied for and obtained. A receiver appointed by a State court may be discharged or removed by the Federal court after a removal.33 Whether after removal a plea of lis pendens, based upon a former suit in the Federal court, should be sustained, was left undecided. If the jurisdictional facts are not stated in the petition or other

28 Ober v. Gallagher, 93 U. S. 199, 206; Stewart v. Dunham, 115 U. S. 61, 64. But see Perry v. Clift, 32 Fed. R. 801. See also Texas Trans. Co. v. Seeligson, 122 U. S. 519; Bacon v. Felt, 38 Fed. R. 870, cited supra, § 384. 29 Culver v. Woodruff, 5 Dill. 392. 30 Bane v. Keefer, 66 Fed. R. 610; supra, § 18. Where the State court had allowed the intervention of a person not named in the original pleading, and the intervenor removed the case, a remand was ordered at plaintiff's motion after he had amended his bill so as to leave nothing affecting the intervenor's rights. Iowa H. Co. v. Des Moines, N. & R. R. Co., 8 Fed. R. 99. Where the claimant of a title paramount to the mortgage had been made a party defendant to a foreclosure, and had removed the suit, the Federal court remanded it on the ground that if retained it must be dismissed as to him. California S. D. & Tr. Co. v. Cheney E. L. T. & P. Co., 56 Fed. R.

31 Bryant v. Thompson, 27 Fed. R. 881; Loomis v. Carrington, 18 Fed. R. 97; Duncan v. Gegan, 101 U. S. 810; Milligan v. Lalance & G. Mfg. Co., 21 Blatchf. 407; Bushnell v. Kennedy, 9 Wall. 387; Davis v. St. Louis & S. F. R. Co., 25 Fed. R. 786; Cleaver v. Traders' Ins. Co.. 40 Fed. R. 711; Lookout Mountain R. Co. v. Houston, 44 Fed. R. 449. But see Spring Co. v. Knowlton, 103 U. S. 49.

32 Carrington v. Florida R. Co., 9 Blatchf. 468; Allmark v. Platte S. S. Co., 76 Fed. R. 615. When, however, at the time of a removal, a motion was pending to resettle an order previously made, the Circuit Court entertained the application, though it refused to review the decision upon which that order had been entered. Milligan v. Lalance & G. Mfg. Co., 17 Fed. R. 465.

33 Texas & St. L. Ry. Co. v. Rust, 17 Fed. R. 275.

34 Ahlhauser v. Butler, 50 Fed. R. 705.

37

36

39

papers on the removal, an amendment stating them cannot be allowed in the Federal court.35 When they were stated informally in the petition, or in an affidavit that accompanied it, such amendments have been allowed. An answer may be treated as an amendment to a petition. An amendment cannot be allowed in the Supreme Court; " nor will the Supreme Court, except, perhaps, under extraordinary circumstances, reverse any judgment for the refusal of the Circuit Court to grant leave to amend.40 When a case has been remanded, a second petition on the same grounds cannot be filed," except in a case where the plaintiff has subsequently amended his pleading so as to show what did not appear before, that there is a controversy arising under the Constitution or laws of the United States. But a removal can be made for prejudice or local influence after a case sought to be removed for difference of citizenship alone has been remanded.43

35 Crehore v. Ohio & M. Ry. Co., 131 U. S. 240; Jackson v. Allen, 132 U. S. 27; Fife v. Whittell, 102 Fed. R. 537; Brigham v. C. C. Thompson Lumber Co., 55 Fed. R. 881; Frisbie v. Ches. & O. Ry. Co., 59 Fed. R. 369. But see Freeman v. Butler, 39 Fed. R. 4; De Loy v. Traveller's Ins. Co. of Hartford, 59 Fed. R. 319; Mitchell v. Small, 140 U. S. 406, 410; Carr v. Fife, 45 Fed. R. 209.

36 Johnson v. F. C. Austin Mfg. Co., 76 Fed. R. 616; Stadleman v. White L. T. Co., 92 Fed. R. 209; Tremper v. Schurbacher, 84 Fed. R. 413; Ayers v. Watson, 113 U. S. 594, 598; Carson v. Dunham, 121 U. S. 421; Powers v. Ches. & O. Ry. Co., 65 Fed. R. 129; Robertson v. Scottish U. & Nat. Ins. Co., 68 Fed. R. 173. But see Crehore v. Ohio & M. Ry. Co., 131 U. S. 240; Winnemans v. Edgington, 27 Fed. R. 324, 326; Freeman v. Butler, 39 Fed R. 1; Jackson v. Allen, 132 S. U. 27. It has been held that after the time to remove has expired, the State court may allow the petition to be amended by inserting the allegation that the citizenship of the parties was the same when the suit was begun as when the petition was filed.

Roberts v. Pac. & A. Ry. & Nav. Co., 104 Fed. R. 577. And that a petition and bond and order for removal may be amended in the Circuit Court of the United States so as to correct a mistake through which the defendant asked a removal to the District Court of the United States. Hadfield v. N. W. Life Assur. Co., 105 Fed. R. 530.

37 Hall v. Chattanooga Agr. Works, 48 Fed. R. 599, 605.

38 Carson v. Dunham, 121 U. S. 421. A petition subsequently presented to the Federal court, it was held, could not be treated as an amendment. Waite v. Phoenix Ins. Co., 62 Fed. R. 769.

39 Cameron v. Hodges, 127 U. S. 322. 40 Ayers v. Watson, 137 U. S. 584, 585. But see Riddle v. Whitehill, 135 U. S. 621, 627.

41 St. Paul & C. R. Co. v. McLean, 108 U. S. 212, 217; Johnston v. Donvan, 30 Fed. R. 395; s. C., 24 Blatch. 274; Smith v. Travelers' Ins. Co., 73 Fed. R. 513. But see Freeman v. Butler, 39 Fed. R. 1, 6.

42 Bailey v. Mosher, 95 Fed. R. 223. 43 Birdseye v. Shaeffer, 37 Fed. R. 821.

46

It has been held at Circuit that, after the time for a removal has expired, a bond previously filed can be amended, or a new bond substituted to remedy an error or informality,“ such as an error in the name of the obligee; but not as regards an error of substance, such as the omission of any sum in the penal clause," or the omission of the provision for the payment of costs; and that an order allowing a bond to be filed nunc pro tunc, as of the date of the filing of the petition, cannot be granted after the time for removal has expired.47 Upon the removal the State court loses all jurisdiction, and cannot even enter a judgment for costs after a reversal with costs by the Supreme Court of the United States of a judgment entered after the petition and bond had been duly filed. Such costs must be recovered in the Federal court.48

The Federal court may but rarely will after removal enjoin the State court from proceeding in the suit," even, it has been held, when the State is the plaintiff.50 The Supreme Court of the United States will not grant a writ of prohibition to prevent a State court from proceeding in a suit after its removal." A party does not waive his removal proceedings by taking a subsequent proceeding in a State court, such as a motion for a continuance, when the State court has claimed to still retain its jurisdiction, nor by defending upon a trial," nor by argument in opposition to an appeal from the order of removal which is reversed.54 It has been held that a land-owner waives his re

52

44 Harris v. Delaware, L. & W. R. Co., 18 Fed. R. 833; Beede v. Cheeney, 5 Fed. R. 388; Deford v. Mehaffy, 13 Fed. R. 481.

45 Austin v. Gagan, 39 Fed. R. 626; Burdick v. Hale, 7 Biss. 96.

46 Torrey v. Grant L. Works, 14 Blatchf. 269; Webber v. Bishop, 12 Fed. R. 49. Contra, Deford v. Mehaffy, 13 Fed. R. 481.

47 Austin v. Gagan, 39 Fed. R. 626. 48 Nat. S. S. Co. v. Tugman, 67 Fed. R. 16.

49 Abeel v. Culbertson, 56 Fed. R. 329; Wagner v. Drake, 31 Fed. R. 849; Baltimore & O. R. Co. v. Ford, 35 Fed. R. 170. But see Sinclair v. Pierce, 50 Fed. R. 851; supra, §§ 211,

50 Abeel v. Culbertson, 56 Fed. R. 329. But see supra, § 37.

51 Chesapeake & O. R. Co. v. White, 111 U. S. 134.

52 Baltimore & O. R. Co. v. Ford, 35 Fed. R. 170; Richards v. Rock Rapids, 31 Fed. R. 505; State v. Sullivan, 50 Fed. R. 592; McMullen v. Northern Pac. R. Co., 57 Fed. R. 16; Insurance Co. v. Dunn, 19 Wall. 214. Not even, it has been held, a stipulation to plead and try the case at the next term. Waite v. Phoenix Ins. Co., 62 Fed. R. 769.

53 Removal Cases, 100 U. S. 457; Insurance Co. v. Dunn, 19 Wall. 214. 54 Mecke v. Valley T. M. Co., 89 Fed. R. 209, 211.

moval of condemnation proceedings by contemporaneously obtaining from the State Supreme Court a certiorari to remove the record thereto for review.55

§ 392. Effect of removal.-The statute prescribes as follows concerning the effect of a removal: "That when any suit shall be removed from a State court to a Circuit Court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law they would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or security given by either party in such suit prior to its removal shall remain valid and effectual, notwithstanding said removal; and all injunctions, orders, and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed." The Act of 1875 provided that upon a removal "any bail that may have been previously taken shall be discharged." This clause is repealed by the Act of 1887, and such bail is now, therefore, a security which remains in force. It has been held at Circuit that an attachment levied in the State court, in accordance with the statutes of the State, on the property of a non-resident, who has not been served with process personally, will be upheld and enforced by the Federal court after removal, although the Federal court had no jurisdiction to levy such an attachment originally. A Federal court may make an order continuing an injunction granted by a State court before the removal, which the State court had no power to grant. A stipulation made before removal may be

1

55 Hudson River R. R. & T. Co. v. Day, 54 Fed. R. 545.

§ 392. 1 Sec. 4 of Act of March 3, 1875 (18 St. at L., ch. 137, p. 470), as amended in Act of March 3, 1887 (24 St. at L., ch. 373).

2 Crocker Nat. Bank v. Pengenstecher, 44 Fed. R. 705; Vermilya v. Brown, 65 Fed. R. 149.

3 Hower v. Weiss M. & G. El. Co.,

55 Fed. R. 356. It has been said that the Federal court may continue an injunction granted by the State court which could not have been originally granted by a court of the United States. Eureka & K. R. Co. v. California & N. Ry. Co., 103 Fed. R. 897. See Hunt v. Fisher, 29 Fed. R. 801.

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enforced afterward. It has been held at Circuit that after removal a sheriff cannot amend his return previously made to the State court; and that the Federal court may authorize its marshal to take into his custody property held by the sheriff under a writ of the State court issued before the removal." A receiver appointed before the removal of the case remains in possession until himself removed, and may be required to account in the Federal court. The Federal court may remove or discharge a receiver appointed by the State court before the removal. It has been held at Circuit that the Federal court cannot after removal punish a party for his violation, before the removal, of an order of the State court. It seems that an order of the State court for the examination of a party after issue and before trial under section 870 of the New York Code of Civil Procedure must be vacated after removal by the Federal court.10 It was held at Circuit, in a case where, before the removal, a deposition had been taken down in shorthand, but not signed, that the Federal court could not compel the witness to sign the deposition." A removal operates as an

Phelps v. Canada Cent. R. Co., 19 Fed. R. 801.

"Tallman v. Baltimore & O. R. Co., 45 Fed. R. 156. See Stephens v. St. Louis & S. F. R. Co., 47 Fed. R. 530. Contra, Richmond v. Brookings, 48 Fed. R. 241. It has been held: that the sheriff's return cannot be contradicted as to matters of which he must have personal and official knowledge as to manner and date of service, Forrest v. Union Pac. R. Co., 47 Fed. R. 1, 2; but that his return may be contradicted as to other matters, as the fact whether the person served was agent of a corporation, Tallman v. Baltimore & O. R. Co., 45 Fed. R. 156; Forrest v. Union Pac. R. Co., 47 Fed. R. 1, 2; and that the record of the State court may be proved by oral evidence to be errone ous. Stephens v. St. Louis & S. F. R. Co., 47 Fed. R. 530.

"Friedman v. Israel, 20 Fed. R. 801. See Dennistoun v. Draper, 5 Blatchf. 336.

7 Hinckley v. Railroad Co., 100 U. S. 153; Mack v. Jones, 31 Fed. R. 189, 196.

8 Texas & St. L. Ry. Co. v. Rust, 17 Fed. R. 275.

9 Kirk v. Milwaukee D. C. Mfg. Co., 26 Fed. R. 501. But see Williams, M. & R. Co. v. Raynor, 7 Biss. 245.

10 Ex parte Fisk, 113 U. S. 713. See Pierce v. Union Pac. Ry. Co., 47 Fed. R. 709; and supra, § 372. But see 27 St. at L. 7. For a case where depositions taken before a removal were not admitted, see Texas & Pac. Ry. Co. v. Wilder (C. C. A.), 92 Fed. R. 953. When a motion is made by a defendant in a State court after he has filed a petition for removal to the Federal court, and is afterwards brought on in the Federal court, the irregularity is waived by the plaintiff by seeking an adjournment without raising the objection. Kinne v. Lant, 68 Fed. R. 436.

11 Arnold v. Kearney, 29 Fed. R. 820.