the cause, which have not been so superseded, should be included in the transcript made by the clerk of the State court.* It is especially important that the transcript should contain the petition and bond for removal filed in the State court, Wilkinson v. Delaware, L. & W. Such papers and entries, although not part of the record, may be used upon a motion to remand to show that the petition and bond for removal were filed too late. 66 fied, to prove what has been done in the State court." Wilkinson v. Delaware, L. & W. R. Co., 23 Fed. 562, 565. 4 Wilkinson v. Delaware, L. & W. R. Co., 23 Fed. 562, quoted in preceding note. phraseology is changed in the later enactment, and all that is now required is that he shall enter 'on the first day of its then next session a copy of the record in such suit.' Whether the Court should make an order as requested, depends upon the question whether Although these pleadings have the original declaration, demurrer, been taken out of the record by the and joinder in demurrer, which stipulation of the parties, they are, have been withdrawn from the nevertheless, a part of the proceedcase by the stipulation of the par-ings in the case, and as such may ties, without prejudice and with- be used here, when properly veriout costs, are still to be regarded as a part of the record of the suit? They were abandoned and withdrawn by consent. They have no place nor office in the pleadings which led up to the issue to be tried. The record of a suit has been defined to embrace the successive judicial steps which have been taken and are necessary to show jurisdiction and regularity of procedure; the process writ or summons, with proof of service; the pleadings, minutes of trial, verdict, and judgment; and also ancillary and interlocutory proceedings, entering into and supporting the action. 2 Abb. Law Dict. 388. The clerk very properly made the stipulation of the parties, whereby these pleadings were taken out of the case, a part of the record; and quite as properly, we think, declined to incumber give the Circuit Court jurisdicthe record with what they had agreed should form no part thereof. We must therefore refuse to enter an order to add to the record any papers which do not constitute any part of the record of the suit." "The term 'record,' as here used, ought to be held to include the process, pleadings, depositions, etc., as set forth in detail in the act of 1866, on file in the cause at the time of removal." Miller v. Tobin, 18 Fed. 609, 9 Sawy. 401. "The petitioning party is then required to file in the Circuit Court copies of the process, and of all pleadings, depositions, testimony and other proceedings in the State court. This includes the proceedings by which the transfer was effected, and these, as has been seen, must show the facts necessary to tion." Pittsburgh, C. & St. L. R. Co. v. Ramsey, 22 Wall. 322, 22 L. 823. The better rule under the act of 1789, ante § 7, note 3, was nearly the same as under the present act, and the order of such court, if one was made, for the removal of the suit.5 The transcript of the record of the State court is the foundation upon which the Circuit Court of the United States is to act, and upon any appeal or writ of error that transcript necessarily becomes a part of the record. It is the duty of the removing defendant, and not of the clerk of the State court, to enter the copy of the record in the Circuit Court of the United States." While it is the duty of the removing defendant to file the copy of the record of the State court in the Circuit Court of the United States, the plaintiff may file such copy even before the time when the defendant is required to file it.8 McBratney v. Usher, 15 Fed. Cas. plaintiff may at once file the tran1215, 1 Dill. 367, script when an order of removal is made. where Judges Dillon and Delahy say: "The phrase 'said process' refers to the suit commenced;' and as here used, the word 'process' is equivalent to the word 'proceedings.' Contra, Brownell v. Gordon, 4 Fed. Cas. 450, 1 McAll. 207; Martin v. Kanouse, 16 Fed. Cas. 895, 1 Blatchf. 149. Post § 210; Southern District, New York: 855. Nevada: Delbanco v. Singletary, 40 Fed. 177, 14 Sawy. 124; Chiatovich v. Hanchett, 78 Fed. 193. In others this is held to be the law, without any rule of Court. Consolidated Traction Co. v. Hegler v. Faulkner, 127 U. S. 482, Guarantors' Liability & Ind. Co., 78 8 Sup. Ct. 1203, 32 L. 210; McBratney v. Usher, 15 Fed. Cas. 1215, 1 Dill. 367. 6 Clinton v. Missouri Pac. R. Co., 122 U. S. 469, 7 Sup. Ct. 1268, 30 L. 1214. "The law devolves on the party, and not the clerk, the duty of procuring and filing a copy of the record." Miller v. Wattier, 24 Fed. 49, 11 Sawy. 74. To the same point: Hatcher v. Wadley, 84 Fed. 913. | In some Districts there is a rule of Court expressly providing that Fed. 657; Arthur v. New England Mut. Life Ins. Co., 2 Fed. Cas. 1, 7 Reporter 329, 6 Wkly. Notes Cas. 403; Mahoney Min. Co. v. Bennett, 16 Fed. Cas. 495, 4 Sawy. 289, 1 San Fran. Law J. 33. The right of the plaintiff to file the transcript where the defendant fails to do so within the time required by law is asserted in Hyde v. Phoenix Ins. Co., 12 Fed. Cas. 1113, 2 Dill. 525; McBratney v. Usher, 15 Fed. Cas. 1215, 1 Dill. 367. If the copy of the record of the State court first filed is defective or erroneous, it may be completed or corrected.9 The fact that the transcript is defective is not a sufficient cause for remanding the suit to the State court.10 § 182. The copy of the record of the State court should ordinarily be filed in the Circuit Court of the United States by the first day of the next session of such Circuit Court after the order for removal is made by the State court. -The time fixed by the statute to file the copy of the record of the State court in the Circuit Court of the United States is, in ordinary cases, "on the first day of its then next session." If the first day of the next session be less than twenty days away, the copy of the record may be filed at any time within twenty days.2 1 The language of the removal act, read literally, requires the petitioner for removal to file such copy in the Circuit Court of the United States on the first day of its next session, or within twenty days, "after filing the petition and bond in the State court." Some cases so construe the statute and require such filing regardless of the time when the State court accepts the petition and bond.3 This construction takes no notice of delay, which is sometimes unavoidable, in procuring an order of removal from the State court. The more reasonable construction of the act is to hold that the time within which the transcript shall be filed begins to run when the State court accepts the petition and bond. The petitioner for removal waives no rights by omitting to file in the Circuit Court of the United States, a transcript of the proceedings of 9 Kaeiser v. Illinois Cent. R. Co., 6 Fed. 1, 2 McCr. 187; Probst v. Cowen, 91 Fed. 929; 415, 3 Woods 715; 2 Ante § 12. 8 Eisenmann v. Delemar's Nevada Gold-Min. Co., 87 Fed. 248; Clippenger v. Missouri Val. Life Ins. Co., 5 Fed. Cas. 1066, 1 Flip. Dennis v. Alachua County, 7 456, 5 Ins. Law J. 310, 22 Int. Rev. Fed. Cas. 467, 3 Woods 683. 10 Dennis v. Alachua County, Fed. Cas. 467, 3 Woods 683; Probst v. Cowen, 91 Fed. 929. § 182. 1 Ante § 8. Rec. 47, 2 Cin. Law Bul. 218, 8 Chi. 7 Leg. News 155, 4 Am. Law Rec. 585, 1 Law & Eq. Rep. 138; Cobb v. Globe Mut. Life Ins. Co., 5 Fed. Cas. 1125, 3 Hughes 452, 6 Reporter 515, 2 Va. Law J. 52. the State court until he can procure such State court's acceptance of his petition and bond.4 While the statute requires the copy to be entered on the first day of the term of Court, its practical construction is that the copy may be filed on or before that time.5 Where there are no Divisions in a District, but the sessions of the Circuit Court are held at different places therein, the "next session," meant by the statute, is the next session of the Circuit Court held at any place within the District. Where, however, a District is divided into Divisions, it seems that "its then next session" means the next session held in the Division of the District in which the case was pending in the State court at the time of the removal. The statutes expressly so provide in reference to removals in the Southern District of California, the Southern District of Georgia,8 the Southern District of Ohio,9 the Eastern District of Tennessee,10"the Northeastern Division judicial District of Ten 4 Baltimore & O. R. Co. v. Koontz, 104 U. S. 5, 26 L. 643; on 66 Winchell v. Coney, 27 Fed. 482. 5" To file on the first day means or before." Arthur v. New England Mut. Life Ins. Co., 2 Fed. Cas. 1, 7 Reporter 329, 6 Wkly. Notes Cas. 403. The following among other cases directly or inferentially assert this rule: Texas & St. L. R. Co. v. Rust, 17 Fed. 275, 5 McCr. 348; The cases which recognize the right of the Circuit Court of the United States to take steps in a removed suit before the beginning of the next term decide the same by necessary implication. Post § 184 and notes. 6 Lucker v. Phoenix Assur. Co., 66 Fed. 161; Pierce v. Corrigan, 77 Fed. 657; Hatcher v. Wadley, 84 Fed. 913. Contra, holding that the Circuit Court will, in effect, create conven Delbanco v. Singletary, 40 Fed.ient Divisions of a District, al177, 14 Sawy. 124; though Congress has created none: Cobb v. Globe Mut. Life Ins. Co., 5 Fed. Cas. 1125, 3 Hughes 452, 6 Reporter 515, 2 Va. Law J. 52. The times of holding the sessions of the Circuit Courts of the United Champlain Const. Co. v. O'Brien, States are given ante § 179, foot104 Fed. 930; Commercial & Sav. Bank v. Corbett, 6 Fed. Cas. 214, 5 Sawy. 172; Mahoney Min. Co. v. Bennett, 16 Fed. Cas. 495, 4 Sawy. 289, 1 San Fran. Law J. 33. notes 19-63. 7 Ante § 179, note 5. nessee, "11 and the whole of the State of Texas.12 A similar provision as to the "Southwestern Division judicial District of Missouri" will take effect July 1, 1901.13 § 183. The prima facie effect of a failure by defendant to file the copy of the record of the State court, in apt time, in the Circuit Court of the United States, is to require that the cause be remanded to the State court.-A failure by the removing defendant to file the transcript of the record of the State court in the Circuit Court of the United States in apt time does not restore the jurisdiction of the State court without a remanding order by such Circuit Court. But such failure, unexcused, is good cause for remanding the suit to the State court.2 The Circuit Court of the United States may, for good cause shown, permit the copy of the record of the State court to be filed by the defendant after the time fixed by the statute has expired, and proceed with the suit.3 11 Ante § 179, note 17. 12 Ante § 179, note 18. 13 Ante § 179, note 40. § 183. 1 National Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. 87; Kramer v. Ferry, 27 Ill. App. 479. 2 St. Paul & C. R. Co. v. McLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. 703, affirming McLean v. St. Paul & C. R. Co., 16 Fed. Cas. 285, 16 Blatchf. 309, 25 Int. Rev. Rec. 249, 8 Reporter 69, 20 Alb. Law J. 78; Stoutenburgh v. Wharton, 18 Fed. 1; McGregor v. McGillis, 30 Fed. 388; Hatcher v. Wadley, 84 Fed. 913; Bright v. Milwaukee & St. P. R. Co., 4 Fed. Cas. 136, 14 Blatchf. 214; 108 U. S. 212, 2 Sup. Ct. 498, 27 L. 703; Woolridge v. McKenna, 8 Fed. 650; Hall v. Brooks, 14 Fed. 113, 21 Blatchf. 167; Winchell v. Coney, 27 Fed. 482; Rowell v. Hill, 28 Fed. 433, 24 Blatchf. 136; Burgunder v. Browne, 59 Fed. 497; Lucker v. Phoenix Assur. Co., 66 Fed. 161; Pierce v. Corrigan, 77 Fed. 657; Eisenmann v. Delemar's Nevada Gold-Min. Co., 87 Fed. 248. An order to remand was denied where there was no legal excuse for the delay, in Kidder v. Featteau, 2 Fed. 616, 1 McCr. 323; Jackson v. Mut. Life Ins. Co., 13 Broadnax v. Eisner, 4 Fed. Cas. Fed. Cas. 230, 3 Woods 413. 192, 13 Blatchf. 366. Removal Cases, 100 U. S. 457, 25 L. 593; In Cobb v. Globe Mut. Life Ins. Co., 5 Fed. Cas. 1125, 3 Hughes 452, 6 St. Paul & C. R. Co. v. McLean, Reporter 515, 2 Va. Law J. 52, |