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abandonment of an appeal from an interlocutory order not appealable in the Federal court. 12 A removal is analogous to a change of venue, not to an appeal.13

§ 393. Remand.- The statute provides: "That if, in any suit commenced in a Circuit Court, or removed from a State court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said Circuit Court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require, and shall make such order as to costs as shall be just." A case which was properly removed cannot be remanded by consent. A remand for want of jurisdiction may be made at the motion of the party who removed the case. Such a motion may be made after a verdict, or it seems after judgment against the moving party; or the judgment may be reversed and a remand ordered upon an appeal by the party who removed the cause." In a case where, after overruling a motion to remand a cause which had been removed on the ground that a plea raised a Federal question, a demurrer to the plea was sustained; it was then held that there was no longer any Federal question in the case, and a second motion to remand was granted."

12 Freeman v. Butler, 39 Fed. R. 1. 13 Davis v. St. Louis & S. F. Ry. Co., 25 Fed. R. 786, 787, per Brewer, J. It has been held in Ohio that when a suit removed from a court of the State to a Federal court has been dismissed by the latter for want of prosecution, the plaintiff cannot begin a second suit for the same cause of action in the State court. Baltimore & O. R. Co. v. Fulton, 59 Ohio St. 575, 53 N. E. R. 265. But see a criticism of this decision by Mr. James McCabe in 60 Alb. L. J. 171. § 393. 118 St. at L. 472, ch. 137, § 5. See supra, § 243.

2 Lawton v. Blitch, 30 Fed. R. 641. 3 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Lazensky v. Knights of Honor, 32 Fed. R. 417; Ferguson v. Ross, 38 Fed. R. 161.

4 Ferguson v. Ross, 38 Fed. R. 161. But see Davies v. Lathrop, 13 Fed. R. 565.

5 Lazensky v. Knights of Honor, 32 Fed. R. 417.

6 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379.

7 Hamblin v. Chicago, B. & Q. R. Co., 43 Fed. R. 401. But see Omaha H. Ry. Co. v. Cable T. Co. of Omaha, 32 Fed. R. 727. See § 293.

It has been said that when the jurisdiction of the Federal court is doubtful, the cause should be remanded. Where part of the suit was not removable, and it seems that another part, if separately prosecuted, might have been removed, the Federal court remanded the entire case.9

In a case where the remand was made after a verdict against the removing party, no costs were imposed.10 In the Supreme Court, when a judgment or decree is reversed for want of jurisdiction, costs are 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."

The costs imposed upon a remand are the docket fee of $20 and such taxable disbursements as have been incurred in the Federal court; 12 but not disbursements incurred in the State court after the petition for removal was filed.13

A delay of a year after the filing of a petition for a removal before a motion to remand has been held a waiver of the objection that such petition was filed too late; but it has been held that the court may of its own motion remand a suit on this ground, and delay does not waive a jurisdictional defect.16 After abatement a suit cannot be remanded until it is

revived.17

15

8 Fitzgerald v. Missouri Pac. R. Co., 45 Fed. R. 812, 820; Hutcheson v. Bigbee, 56 Fed. R. 329; Johnson v. Wells, F. & Co., 91 Fed. R. 1; Plant v. Harrison, 101 Fed. R. 307.

Ladd v. West, 55 Fed. R. 353, 355. But see Sharkey v. Port B. M. Co., 92 Fed. R. 425; s. c. (C. C. A.), 102 Fed. R. 259; Hoge v. Canton Ins. Office, 103 Fed. R. 513; supra, § 383.

10 Ferguson v. Ross, 38 Fed. R. 161. 11 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Continental Ins. Co. v. Rhoads, 119 U. S. 237; Peper v. Fordyce, 119 U. S. 469; Everhart v. Huntsville College, 120 U. S. 223; King Bridge Co. v. Otoe County, 120 U. S. 225; Chapman v. Barney, 129 U. S. 677; Peninsular L. Co. v. Stone, 121 U. S. 631.

12 Josslyn v. Phillips, 27 Fed. R. 481. In the absence of a stipulation in the bond to that effect, the court cannot

in its order of remand direct the entry of judgment against the surety. Colburn v. Hill (C. C. A.), 103 Fed. R. 340.

13 Young v. Merchants' Ins. Co., 29 Fed. R. 273.

14 Miller v. Kent, 18 Fed. R. 561; Baltimore & O. R. Co. v. Ford, 35 Fed. R. 170; Wyly v. Richmond & D. R. Co., 63 Fed. R. 487. Nor for the first time upon appeal. Knight v. International & G. N. Ry. Co. (C. C. A.), 61 Fed. R. 87.

15 Bowers v. Supreme Council Am. L. of H., 45 Fed. R. 81.

16 Jackson v. Allen, 132 U. S. 27; Lazensky v. Knights of Honor, 32 Fed. R. 417; Ferguson v. Ross, 38 Fed. R. 161; Bronson v. St. Croix L. Co., 35 Fed. R. 634; Southworth v. Reid, 36 Fed. R. 451.

17 Wright v. Phipps, 58 Fed. R. 552. A case cannot be remanded by con

The better practice, if it is intended to deny any of the allegations in the petition for a removal, is to file a plea in abatement; 18 but it seems that this is not indispensable, provided a traverse in some form is made.19 When any allegation in the petition is denied, the burden of proof rests on the petitioner.20

On a motion to remand the court will not inquire as to the truth of the allegations in the pleadings," or into the sufficiency of the allegations in the complaint or bill as such, or as to whether the complaint or bill contains a good cause of action, or the answer a good defense," except, when it is claimed that a Federal question is involved, so far as to see whether a Federal question is actually raised.23 Neither the State nor the Federal court should deny a removal upon the ground simply that the averments of the pleading are "insufficient, or too vague to justify a court of equity in granting the relief asked." 24 When the suit is "in its general nature one of which the Circuit Court of the United States could rightfully take cognizance," it is for that court, after the case is docketed there and on final hearing, to determine whether the allegations and proof are sufficient. All questions of this sort must be tried in the Federal court.25

The Act of March 3, 1887, provides that "no appeal or writ of error to the decision of the Circuit Court remanding a cause

sent. Lawton v. Blitch, 30 Fed. R. 641.

18 Clarkhuff v. Wisconsin, I. & N. R. Co., 26 Fed. R. 465; Lacroix v. Lyons, 27 Fed. R. 403; Rumsey v. Call, 28 Fed. R. 769; Carson v. Dunham, 121 U. S. 421; M'Donald v. Salem C. F. M. Co., 31 Fed. R. 577; Johnson v. Accident Ins. Co. of N. A., 35 Fed. R. 374; Imperial Refining Co. v. Wyman, 38 Fed. R. 574. The consolidation of a case does not prevent its remand. Colburn v. Hill (C. C. A.), 101 Fed. R. 500.

19 Beadleston v. Harpending,32 Fed. R. 644; Anderson v. Appleton, 32 Fed. R. 855; Morris v. Gilmer, 129 U. S. 315; Curnow v. Phoenix Ins. Co., 44 Fed. R. 305.

20 Carson v. Dunham, 121 U. S. 421, 425. 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. Pitkin v. Cowen, 91 Fed. R. 599, 600. See supra, § 61. 21 Marshall v. Holmes, 141 U. S. 589, 591; Hax v. Caspar, 31 Fed. R. 499. 22 Ibid.

23 See supra, §§ 17, 385a, note.

24 Marshall v. Holmes, 141 U. S. 589, 601.

25 Stone v. South Carolina, 117 U. S. 430; Burlington, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 513; Kansas City, F. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 303. But see Beadleston v. Harpending, 32 Fed. R. 644.

shall be allowed." 26 It has been held that the Evarts Act of March 3, 1891, does not authorize an appeal from or writ of error to the order of a Circuit Court 27 or of a Circuit Court of Appeals 28 remanding a cause; and that there can be no review of the same by writ of error to the final judgment of the highest court of the State in which a decision conld be had.29 Such a decision cannot be reviewed by mandamus.30 No writ of error nor appeal can be taken from or to an order denying a motion to remand before final judgment or decree.31

26 24 St. at L. 552.

S. C., 1 C. C. A. 523; s. c., 5 U. S. App.

Mo. Pac. Ry. Co. v. Fitzgerald, 160 9. Cf. supra, § 363. It is for the Ú. S. 556. State court to determine what shall

23 German Nat. Bank v, Speckert, be done with depositions taken in 181 U. S. 405.

29 Chicago, St. P., M. & O. Ry. Co. v. Roberts, 141 U. S. 690. Cf. Gurnee v. Patrick County, 137 U. S. 141.

the Federal court before a remand. Broadway Ins. Co. v. Chicago G. W. Ry. Co., 101 Fed. R. 507. The Federal court cannot, after discovering the

30 In re Pennsylvania Co., 137 U. S. defect in its jurisdiction, confirm a sale previously made. Colburn v.

451.

31 Patten v. Cilley, 50 Fed. R. 337; Hill (C. C. A.), 103 Fed. R. 340.

CHAPTER XXX.

PRACTICE IN ADMIRALTY.

BY CHARLES C. BURLINGHAM, of the New York Bar.

§ 394. Libel. The first step in an admiralty suit is the filing of the libel with the clerk of the District Court. Until this is done process will not issue.1 The form of the libel varies in the several districts with the methods of pleading adopted in the respective States, not by force of any rule of law or statute, but by a natural process of adaptation. The Supreme Court, in its Admiralty Rules, has, however, laid down certain positive rules of pleading. The libel must state the nature of the cause of action, whether of contract, tort, or damage, salvage, or possession, or otherwise, as the case may be. It should allege that the cause is within the admiralty and maritime jurisdiction of the United States and of the court. If the proceeding is in rem, the libel must allege that the property proceeded against is within the district. If in

§ 394. Adm. Rule 1.

2 Adm. Rule 23. It is the safer practice to allege specifically that the waters where the cause of action arose are navigable. But see Lands v. A Cargo of Two Hundred and Twenty-seven Tons of Coal, 4 Fed. R. 478; supra, §§ 106, 264.

3 Adm. Rule 23. This does not oust the court of jurisdiction where the vessel was within the district when the libel was verified, departs before it is filed, returns after the filing, and is then seized on an alias monition. The Queen of the Pacific, 61 Fed. R. 213; s. C., Bancroft-Whitney Co. v. The Queen, 78 Fed. R. 155. A libel filed to enforce a lien which did not then exist was sustained after the lien came into existence. Clark v. Five Hundred and Five Thousand

Feet of Lumber (C. C. A.), 65 Fed. R. 236; s. c., 70 Fed. R. 1020.

As to jurisdiction in proceedings to limit liability, see In re Leonard, 14 Fed. R. 53; infra, § 434, 437. A corporation may be sued in personam in any district where process can be served upon it. In re Louisville Underwriters, 134 U. S. 488. But it has been held that in the Western District of Missouri suits in personam can only be brought in the division where the respondent resides if he is a resident of the district; and suits in rem only in the division where the property is situated. The L. B. X., 88 Fed. R. 290. An appearance, the procurement of the release of the vessel by filing a stipulation, and the transfer of the suit to the division of the claimant's residence, were held

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