If the clerk of the State court declines to furnish a copy of the record, the Circuit Court of the United States may issue a writ of certiorari commanding him to do so and enforce obedience to the writ. If the removing defendant is still unable to procure the copy of the record, the Circuit Court of the United States may dispense there with and require the plaintiff to plead anew in the Circuit Court.5 § 184. The extent of Federal jurisdiction after the filing of the petition and bond for removal in the State court and before the first day of the next term of the Circuit Court of the United States has been a matter of controversy. The Federal Courts are agreed that the jurisdiction of a State court over a removable case terminates upon the timely filing therein of a proper petition and bond for its removal to a Circuit Court of the United States. If the jurisdiction of the State court then ceases, does that of the Federal Court then begin, or is such jurisdiction suspended until the first day of the next term of the Federal Court, so that the Court refused to accept a good excuse for a failure to sooner file the copy of the record. jurisdiction of the latter Court attached, in advance of the filing of the transcript, from the moment it Compare ante § 182 and cases became the duty of the State court cited in notes 3 and 4. to accept the bond and proceed no further." National Steamship Co.. 4 Ante § 12; Wilkinson v. Delaware, L. & W. v. Tugman, 106 U. S. 118, 1 Sup. Ct. R. Co., 23 Fed. 562; Broadnax v. Eisner, 4 Fed. Cas. 192, 13 Blatchf. 366; 58, 27 L. 87. Reference may also be made to Dennis v. Alachua County, 7 Fed 17 Fed. 275, 5 McCr. 348; 2 neither court can act in the cause? This question is intimately connected with that already discussed as to the right of a party to file the transcript of the record of the State court in the Circuit Court of the United States before the beginning of the next term. It has been decided that while jurisdiction is theoretically in the Federal Court from the time of filing the petition and bond, such Court has no power to proceed with the case until such transcript is filed.3 The better reason, if not the weight of authority, favors the view that the jurisdiction of the Federal Court, for all purposes, is complete, and its power to proceed perfect, as soon as the copy of the record of the State court is filed, even before the first day of the next session. Several cases assume the true rule to be that the Federal Court may make preliminary orders, such as granting or dissolving a temporary injunction or an attachment, but cannot remand the suit or try the cause at the current term-that a hearing upon the merits must await "the first day of its then next session." 5 Judge Ham 2 Ante § 182. 8"The entering of the copy of the record in the Circuit Court is necessary to enable that Court to proceed, but its jurisdiction at. taches when, under the law, it becomes the duty of the State court to proceed no further.' The jurisdiction is changed when the removal is demanded in proper Spalding, 35 C. C. A. 295, 93 Fed. 280. 4 Anderson v. Appleton, 32 Fed. 855; Torrent v. S. K. Martin Lumber Co., 37 Fed. 727; Delbanco v. Singletary, 40 Fed. 177, 14 Sawy. 124; Mills v. Newell, 41 Fed. 529; Chiatovich v. Hanchett, 78 Fed. 193; form and a case for removal made. | K. C. Ry. Co., 60 Fed. 773; Consolidated Traction Co. V. Hartford & C. W. R. Co. v. Montague, 94 Fed. 227. 5 In re Barnesville & M. Ry. Co., 4 Fed. 10, 2 McCr. 216; New Orleans City R. Co. v. Crescent City R. Co., 5 Fed. 160; Portland v. Oregonian Ry. Co., 6 Fed. 321, 7 Sawy. 122; This case is approved in Texas & St. L. Ry. Co. v. Rust, mond, in carefully prepared opinions, has expressed the view that the Federal Court acquires complete jurisdiction when the transcript is filed therein, if not before, and, in the exercise of such jurisdiction, may grant provisional remedies or remand the suit before the beginning of the next term, but should not ordinarily hear the case upon its merits-upon the same principle that if the suit were begun in the Federal Court it should not be tried before the return day of the summons.6 Kansas City & T. Ry. Co. v. Interstate Lumber Co., 36 Fed. 9. The question under discussion is mooted but not decided in Commercial & Sav. Bank v. Corbett, 6 Fed. Cas. 214, 5 Sawy. 172. It has been held that the Federal Court can compel the parties to Frink v. Blackinton Co., 80 Fed. perfect the issues at the current 306. Some cases decide that the Federal Court may take jurisdiction for the purpose of administering provisional remedies, without it being necessary to decide whether the Court has broader jurisdiction. Mahoney Min. Co. v. Bennett, 16 Fed. Cas. 495, 4 Sawy. 289, 1 San Fran. Law J. 33; term but not to try the issues. Judge v. Anderson, 19 Fed. 885. Hamilton v. Fowler, 83 Fed. 321; Ryder v. Bateman, 93 Fed. 16. Compare decision of Judge Wheeler in Champlain Const. Co. v. O'Brien, 104 Fed. 930. CHAPTER XIII. PREJUDICE AND LOCAL INFLUENCE. § 185. A petition for removal for prejudice or local influence must be filed in the Circuit Court of the United States and not in the State court in which the suit is pending. The clause of the statute as to removals for prejudice or local influence1 is very ambiguous, its meaning obscure, and its construction by different Courts, in many respects, most contradictory.2 Upon one subject, however, there seems to be unanimity of opinion. Proceedings for removal thereunder must be had in the Circuit Court of the United States and not in the State court. The statute providing for filing a petition for removal in the State court expressly excepts from its operation "such cases as are provided for in the last clause of the re $ 185. 3 local influence, to remove said 1 Ante § 7, which is here re-quoted cause: for convenient reference: Provided, That if it further ap"And where a suit is now pend-pear that said suit can be fully and ing, or may be hereafter brought, justly determined as to the other in any State court, in which there defendants in the State court, withis a controversy between a citizen out being affected by such prejuof the State in which the suit is dice or local influence, and that no brought and a citizen of another party to the suit will be prejudiced State, any defendant, being such by a separation of the parties, said citizen of another State, may re- Circuit Court may direct the suit move such suit into the Circuit to be remanded, so far as relates to Court of the United States for the such other defendants, to the State proper District, at any time before court, to be proceeded with therethe trial thereof, when it shall be in." 25 St. L. 433, 1 Supp. 611. made to appear to said Circuit Court that from prejudice or local influence he will not be able to obtain justice in such State court, or in any other State court to which the said defendant may, under the laws of the State, have the right, on account of such prejudice or 2 The "unsettled points" arising on this act “have given the Judges so great a burden of difficulty and doubt." Minnick v. Union Ins. Co., 40 Fed. 369. Compare article by E. F. Ware, 30 Cent. Law J. 29. 3 Ante § 8. moval section, being the clause quoted in a preceding note. As there is no authority of law for filing in the State court a petition for removal on the ground of prejudice or local influence, a petition so filed should be denied by the State court.5 An order of removal made by a State court upon such a petition is void." Although the statute does not, in terms, require a petition for such removal to be filed in the Circuit Court of the United States, or regulate the practice in such cases, the deficiencies of the statute, in this respect, have been, in a measure, supplied by the decisions of the Courts. A defendant wishing to remove a suit under this clause of the statute should file a petition for such removal in the Circuit Court of the United States for the District in which the cause is pending in the State court.7 § 186. The petition for removal should plead the facts entitling the petitioner to remove the suit for prejudice or local influence.-A petition for the removal of a suit from a State court to a Circuit Court of the United States on the ground of prejudice or local influence should directly and positively plead the facts entitling the petitioner to a removal. 4 Ante note 1 to this section. 5 Mason v. Interstate Con. St. Ry. Co., 170 Mass. 382, 49 N. E. 645; Blackwell v. Lynchburg & D. R. Co., 107 N. C. 217, 12 S. E. 133; Williams v. Southern Bell Tel. & T. Co., 116 N. C. 558, 21 S. E. 298; Rome & C. Const. Co. v. Smith, 84 Ga. 238, 10 S. E. 728. "The State court had no authority, either under State or Federal law, to make the order when it did, and it was therefore void." Tod v. Cleveland & M. V. Ry. Co., 22 U. S. App. 707, 12 C. C. A. 521, 65 Fed. 145. 7 McDonnell v. Jordan, 178 U. S. 229, 20 Sup. Ct. 886, 44 L. 1048; Schwenk v. Strang, 19 U. S. App. 300, 8 C. C. A. 92, 59 Fed. 209; Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 854, 1 L. R. A. 65; Southworth v. Reid, 36 Fed. 451; Kaitel v. Wylie, 38 Fed. 865; Minnick v. Union Ins. Co., 40 Fed. 369; Hall v. Chattanooga Agricultural Works, 48 Fed. 599; Bonner v. Meikle, 77 Fed. 485. It has been held a petition to the Federal Court is not jurisdictional; that a petition may be filed in the State court as a notice to that court and a certified copy thereof filed in the Federal Court. Short v. Chicago, M. & St. P. Ry. Co., 33 Fed. 114, 34 Fed. 225. It has been held, too, that a State court may refuse, without error, to postpone the trial of a suit to enable the defendant to petition the Federal Court for a removal. |