filing or presentation to the court of such petition and bond.* Other cases hold the same. Shedd v. Fuller, 36 Fed. 609; Roberts v. Chicago, St. P., M. & O. Ry. Co., 45 Fed. 433; s. c., 48 Minn. 521, 51 N. W. 478; conform to the facts, and a removal denied. Koshland v. Home Mut. Ins. Co., 31 Or. 321, 49 Pac. 864, 50 Pac. 567. As the filing of a petition and Williams v. Massachusetts Ben. bond for removal does not finally Ass'n, 47 Fed. 533; oust the jurisdiction of the State Hall v. Chattanooga Agricultural court until such petition and bond Works, 48 Fed. 599; are accepted by the State court, the State court has the power to do so, and should permit a petition and bond to be withdrawn, under ordinary circumstances, at any time before their acceptance, La Page v. Day, 74 Fed. 977; Scott v. Otis, 21 Fed. Cas. 846, 23 Int. Rev. Rec. 367, 4 Law & Eq. Rep. 598, 5 N. Y. Wkly. Dig. 264, 10 Chi. Leg. News 41; Howard v. Southern Ry. Co., 122 and retain jurisdiction of the suit. N. C. 944, 29 S. E. 778. It is held that where a petition for removal is filed in due time, a failure to present it to the court for acceptance until after the time to file such petition has expired, will not defeat a removal, where there has been no intentional or unreasonable delay. Burck v. Taylor, 39 Fed. 581, 584; | Texas & Pac. R. Co. v. Bloom, 85 Tex. 279, 20 S. W. 133. Wadleigh v. Standard Life & Ac. Ins. Co., 76 Wis. 439, 45 N. W. 109. There are cases in seeming conflict with the statute, which decide that it is sufficient to present the petition and bond for removal to the judge of the State court in vacation. Mecke v. Valleytown Mineral Co., 35 C. C. A. 151, 93 Fed. 697; South Carolina v. Coosaw Min. Co., 45 Fed. 804; Lund v. Chicago, R. I. & P. Ry. Co., 78 Fed. 385. It has even been held that a Where a petition and bond for removal were filed with the clerk, but the attention of the court was not called to them, and the defend-filing of the petition and bond in ant proceeded to trial without objection, it was held that the defendant waived its right to a removal. Home Ins. Co. v. Curtis, 32 Mich. to a judge thereof for acceptance. 402. When it is admitted by the defendant in open court upon the hearing of a petition for removal in the State court that the allegation of diverse citizenship in the petition for removal is false, and that the plaintiff and defendant are citizens of the same State, the petition will be treated as amended to the State court in vacation effects a removal at once and that the petition and bond need not be presented either to the State court or Eisenmann v. Delamar's Nevada Gold-Min. Co., 87 Fed. 248. "Certainly it is the decorous practice for the removing party to present his petition and bond to the judge of the State court and obtain the formal acceptance of the court. It is also the safer practice, because he can thereby have an opportunity to obviate any 4 For note 4, see p. 496. Plaintiff's attorneys are presumptively always in court; but as a matter of fact attorneys are often absent.5 The State court to which a petition is addressed may properly deny a removal when the suit is not a removable one or the conditions precedent to a removal have not been performed. An erroneous order for the removal of a suit may be set aside by the State court before the transcript is filed in the Federal Court.7 Whether there may be an appeal to the supreme or other remediable objections which are Fisk v. Union Pac. R. Co., 9 Fed. Wehl v. Wald, 29 Fed. Cas. 589, 17 Blatchf. 342; Wormserv. Dahlman, 30 Fed. Cas. 637, 16 Blatchf. 319, 57 How. Prac. 286, 7 Reporter 740; Similar cases are Southern R. Co. v. Hudgins, 107 5 Common courtesy requires that plaintiff's attorneys be informed of the filing and presentation of the petition and bond, in order that the State court, in passing upon their sufficiency, may have Brown v. Murray Nelson & Co., the aid of any suggestions which 43 Fed. 614; North American Loan & T. Co. v. Colonial & U. S. Mortg. Co., 3 S. D. 590, 54 N. W. 659. Compare such attorneys wish to make as to the removability of the suit or the solvency of the sureties on the bond, and to give the plaintiff an opportunity to except to the order Wills v. Baltimore & O. R. Co., of removal, if one is made, and 65 Fed. 532. take the necessary steps to appeal 4 Stevens v. Richardson, 9 Fed. therefrom, if plaintiff should desire 191, 20 Blatchf. 53; to appeal. Young v. Merchants' Ins. Co., 29 Fed. 273, 274; Wilson v. Western U. Tel. Co., 34 Fed. 561; Strasburger v. Beecher, 44 Fed. 209, 213; Chiatovich v. Hanchett, 78 Fed. 193; Creagh v. Equitable Life Assur. Soc., 83 Fed. 849; Southern R. Co. v. Hudgins, 107 Ga. 334, 33 S. E. 442. 6 Cases cited in note 2 to this section. 7 In this case the petition for removal was filed too late: Larson v. Cox, 39 Kan. 631, 18 Pac. 892. In this case the suit was held not appellate court of the State from an order of the trial court ordering a removal has been variously decided. By reason of certain amendments to the statutes of the United States, to fall within the description of cases removable: Western U. Tel. Co. v. Griffith, 104 Ga. 56, 30 S. E. 420, and earlier Shepherd v. Young, 17 Ky. (1 T. Georgia cases there collected; B. Mon.) 203. 8 The right of appeal is asserted in the following, among other, cases: Wills v. Home Ins. Co., 28 Iowa 545, 4 Am. R. 180; Crane v. Reeder, 28 Mich. 527, 15 Am. R. 223; s. c., 35 Mich. 146; Fitzgerald v. Allman, 82 N. C. 492. Perhaps the strongest statement Stanbrough v. Griffin, 52 Iowa of the theory of the right of appeal 112, 2 N. W. 1011; in such cases is found in the decis Dickinson v. Heeb Brewing Co., ion of the supreme court of Wis 73 Iowa 705, 36 N. W. 651; Burson v. Nat. Park Bank, 40 Ind. 173, 13 Am. R. 285 (overruling upon this point Aurora v. West, 25 Ind. 148); Baltimore, P. & C. R. Co. v. New Albany & S. R. Co., 53 Ind. 597; Akerly v. Vlias, 24 Wis. 165, Am. R. 166; 1 R. Whiton v. Chicago & N. W. consin in Akerly v. Vilas, supra. It is held, however, in one case, that only such objections to the removal as have been presented to the trial court and preserved by a bill of exceptions are reviewable by the appellate court. Stone v. Sargent, 129 Mass. 503, 512. Some cases say that a plaintiff's only remedy for a wrongful removal must be sought in the Federal Court by a motion to remand or plea to the jurisdiction. The right Home Life Ins. Co. v. Dunn, 20 to appeal from an order of removal Ohio St. 175, 5 Am. R. 642; Louisiana v. Judge, 23 La. Ann. 29, 8 Am. R. 583; to a higher State court is denied in Akerly v. Vilas, 1 Fed. Cas. 253, 1 Abb. U. S. 284, 2 Biss. 110, 1 Chi. Goodrich v. Hunton, 29 La. Ann. Leg. News 161, 8 Am. Law Reg. (N. 372; Johnson v. New Orleans N. B. Ass'n, 33 La. Ann. 479; S.) 229; Ellerman v. New Orleans, M. & T. R. Co., 8 Fed. Cas. 524, 2 Woods New Orleans v. Seixas, 35 La. 120; Ann. 36; Aurora v. West, 25 Ind. 148, over Guinault v. Louisville & N. R. ruled supra; Co., 41 La. Ann. 571, 6 So. 850; Illius v. New York & N. H. R. Mecke v. Valleytown Mineral Co., | Co., 13 N. Y. 597; 122 N. C. 790, 29 S. E. 781 (compare Durham v. Southern Life Ins. Co., s. C., sub nom. Mecke v. Valley Town | 46 Tex. 182; Mineral Co., 89 Fed. 209, affirmed, s. C., sub nom. Mecke v. Valleytown Mineral Co., 35 C. C. A. 151, 93 Fed. 697); Kendrick v. McQuary, Cooke (Tenn.) 479; s. c., sub nom. McQuary v. Kendrick, 5 Hay. (Tenn.) 113, where it appears that the United the question has lost nearly all the importance which it once possessed.9 The State court should require the surety thereon to be "good and sufficient" before accepting the removal bond.10 The later decisions deny to the State court all authority to inquire into the truth of the facts alleged in the petition for removal. Its statements of the facts of the case, no matter whether true or false, must be accepted as true by the State court. The plaintiff may, in the Circuit Court of the United States Court refused to take jurisdiction and remanded the case to the State court where it was tried. If the record is filed in the United States Circuit Court and the cause is remanded by such Court, the order remanding it is not now subject to review. Ante § 7, and post § 204. If the Circuit Court refuses to remand the suit and the plaintiff is beaten on the trial, the question of the rightfulness of the removal | may, in any case, be reviewed by the Supreme Court, if the plaintiff desires such review. Post § 210. The plaintiff, whose case is removed without his consent, is, therefore, no longer in the unpleasant predicament portrayed in Stone v. Sargent, 129 Mass. 503. The proper and decorous remedy for an improper order of removal made by a trial court of a State, under existing statutes, is to move the Circuit Court of the United States to remand the suit. Le Roux v. Bay Circuit Judge, 46 Mich. 189, 9 N. W. 154; Forncrook Manuf'g Co. v. Barnum Wire Works, 54 Mich. 552, 20 N. W. 582. 10 Ante §172. 11 Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. 962; Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct. 1050, 30 L. 167; Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. 1159; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. 963; Sinclair v. Pierce, 50 Fed. 851; Postal Tel. Cable Co. v. Southern Ry. Co., 88 Fed. 803; Van Horn v. Litchfield, 70 Iowa 11, 29 N. W. 783; Byson v. McPherson, 71 Iowa 437, 32 N. W. 418; Horan v. Strachan, 82 Ga. 566, 9 S. E. 429; Southern R. Co. v. Hudgins, 107 Ga. 334, 33 S. E. 442; Stix v. Keith, 90 Ala. 121, 7 So. 423; Craven v. Turner, 82 Me. 383, 19 Atl. 864; Guinault v. Louisville & N. R. Co., 42 La. Ann. 52, 7 So. 62. The earlier Federal cases, reviewed in the Dunn case, supra, as well as Ladd v. Tudor, 14 Fed. Cas. 923, 3 Woodb. & M. 325, sanction the doctrine that questions of fact arising upon a petition for removal may be decided by the State court in which the petition is filed. There are State cases in which this doctrine is maintained, some of which are the following: States, question the truth of the petition for removal; 12 but he cannot be heard to do so in the State court.13 § 178. The State court's acceptance of a petition and bond for removal should be evidenced by a formal order. -The statute makes it the duty of the State court to accept the petition and bond-when the facts and the law are such as to require their acceptance.1 The only proper proof of the action of a court is the record thereof or a certified copy of such record. Therefore, in the orderly course of business, the State court, if the suit is a removable one, and the petition and bond are in proper form and filed in due time, and the surety is sufficient, should enter an order accepting the petition and bond.3 The precise words of the order are not material; any form which shows the action of the court is good. Chesapeake, O. & S. W. R. Co. v. Hendricks, 88 Tenn. 710, 13 S. W. 696, 14 S. W. 488; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 88 Tenn. 721, 13 S. W. 698; Burch v. Davenport & St. P. R. Co., 46 Iowa 449, 26 Am. R. 150; Delaware R. Const. Co. v. Davenport & St. P. R. Co., 46 Iowa 406; Amy v. Manning, 144 Mass. 153, 10 N. E. 737; Knickerbocker Life Ins. Co. v. Gorbach, 70 Pa. St. 150; Orosco v. Gagliardo, 22 Cal. 83; Blair v. West Point Mfg. Co., 7 Neb. 146; Dunn v. Burlington, C. R. & N. R. Co., 35 Minn. 73, 27 N. W. 448, reversed in Burlington, C. R. & N. R. Co. v. Dunn, supra. 12 Post $201. 13 For the possibility of abuses under such a rule, see the quotation ante § 172, note 5, and The form misstatements of fact to procure 1 Ante § 177. It is held, contrary to sound principle, that an acceptance of the petition and bond will be presumed when the record of the State court shows nothing on the subject. Chattanooga, R. & C. R. Co. v. Cincinnati, N. O. & T. P. R. Co., 44 Fed. 456. 3 In re Cromie, 6 Fed. Cas. 840, 2 Biss. 160, 1 Chi. Leg. News 361. "It is necessary at least to make an order approving of the security." Vandevoort v. Palmer, 4 Duer (N. Y.) 677. As to the remedy of the petitioner when the State court fails or refuses to accept the petition and bond, reference may be made Amy v. Manning, 144 Mass. 153, to post § 180. 10 N. E. 737; but it is to be said to the credit of the legal profession that intentional 4 Commercial & Sav. Bank v. Corbett, 6 Fed. Cas. 214, 5 Sawy. 172. |