Opinion of the Court.

evidence satisfactory to it. When it is satisfied that the conditions exist, the defendant may remove: how? The proper way is for him to obtain an order from the Federal court for the removal, file that order in the state court, and take from it a transcript and file it in the Federal court. It may be said that these steps are not in terms prescribed by the statute. That is true; and also true that no specific procedure is named. The language simply is that the defendant may remove, when he has satisfied the Federal court of the existence of sufficient prejudice. The statute being silent, the general rules in respect to the transfer of cases from one court to another must obtain. If the order of one court is to stay the action of another, the latter is entitled to notice. If a case is to pass from one court to another, this is done by filing a transcript of the record of the one in the other. (Virginia v. Paul, ante, 107.) Such orders and transfers are generally in appellate proceedings; yet something of the same kind is appropriate and necessary in the orderly administration of affairs to transfer, by order of the Federal court, a case from the state court to itself. Certainly this statute does not abolish the law of comity, which controls the relations of the courts of two sovereignties exercising jurisdiction within the same territorial limits, nor does it abrogate the duty of counsel to seasonably advise the courts of which they are counsel of any matter which, if known, would prevent an erroneous exercise of jurisdiction. At any rate, if these exact steps are not requisite, something equivalent thereto is. If there had been more attention paid to these matters in removal proceedings, there would have been less irritation prevailing in state tribunals at removals.

But, again, the Revised Statutes of the State of Ohio of 1891 contain these sections:

"Section 6709. A judgment rendered, or final order made by the common pleas court, may be reversed, vacated, or modified by the circuit court, for errors appearing on the record.

"Section 6710. A judgment rendered, or final order made, by the circuit court, any court of common pleas, probate court or the superior court of any city or county, may be reversed,

Opinion of the Court.

vacated or modified by the Supreme Court, on petition in error, for errors appearing on the record."

And these provisions are in accord with the general rule in reference to the scope of inquiry in a reviewing court. Now, the record of the common pleas court disclosed no order of removal, no steps essential thereto. Obviously upon that record, as heretofore said, the Circuit Court could do nothing but affirm the judgment. The record of another court was presented and invoked to compel a decision that there was error in the proceedings of the common pleas court; and in support of this contention the case of Kanouse v. Martin, 15 How. 198, is cited. In that case it appeared that a suit was commenced in the court of common pleas for the city and county of New York. The defendant filed a petition and bond for removal. The court of common pleas denied his petition, and proceeded to try the case. Judgment having been rendered against him, he took the case to an appellate state court. The record which was sent up did not include the removal proceedings, they being matters which the statutes of New York State did not authorize to be incorporated into and made a part of the record. Diminution of the record was suggested, and thereupon a transcript of those proceedings was sent to the appellate court, but that court, holding that they were not, under the statutes of New York, technically a part of the record, refused to consider them, and affirmed the judgment. On a writ of error from this court the judgment was reversed, and it was held that, although those matters were not technically a part of the record according to the statutes of New York, yet that the act of Congress granting the right of removal was binding upon all the courts of the States, and that, if the proceedings were sufficient under that statute for removal, it was the duty of the appellate court to disregard the state limitation and inspect the removal proceedings. In its opinion, on page 208, this court said:

"But it is objected that this is a writ of error to the Superior Court, and that by the local law of New York, that court could not consider this error in the proceedings of the

Opinion of the Court.

Court of Common Pleas, because it did not appear upon the record, which, according to the law of the State, consisted only of the declaration, the evidence of its service, the entry of the appearance of the defendant, the rule to plead, and the judgment for want of a plea, and the assessment of damages; and that these proceedings, under the act of Congress, not being part of this technical record, no error could be assigned upon them in the Superior Court. This appears to have been the ground upon which the Superior Court rested its decision. That it was correct, according to the common and statute law of the State of New York, may be conceded. But the act of Congress, which conferred on the defendant the privilege of removal, and pointed out the mode in which it was to be claimed, is a law binding upon all the courts of that State; and if that act both rendered the judgment of the Court of Common Pleas erroneous, and in effect gave the defendant a right to assign that error, though the proceeding did not appear on the technical record, then, by force of that act of Congress, the Superior Court was bound to disregard the technical objection, and inspect these proceedings."

But all that that case decided was that when the statute of the State fails to make certain proceedings had in the trial court a part of the record for review in the appellate court, a law of Congress which gives a specific effect to those proceedings, if sufficient in form, compels an examination of them in the appellate court, in order that it may be there determined whether the trial court improperly refused to give the due effect to them. Or, to state it in other words, the act of Congress broadens the technical rule of the State statute so as to include in the record other proceedings actually had in the trial court. But that case does not decide that an appellate and reviewing court must examine other than the proceedings of the court whose judgment is sought to be reviewed. See upon this question the case of Goodenough Horseshoe Manufacturing Co. v. Rhode Island Horseshoe Co., 131 U. S. App. ccxxviii, decided by this court in 1877, and reported in 24 L. C. P. R. Co. Rep. 368.

The motion to dismiss must be sustained.

Opinion of the Court.

HOHORST v. HAMBURG-AMERICAN PACKET COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 134. Argued March 13, 1893. - Decided March 27, 1893.

A bill pending in a Circuit Court of the United States against a foreign corporation and other defendants citizens of the United States, for the infringement of letters patent, was dismissed as to the foreign corporation, and, so far as appeared from the record in the appeal from the judgment of dismissal, was still pending and undetermined as to the codefendants. Held, that the decree in favor of the corporation was not

a final decree from which an appeal could be taken to this court, and that this appeal must be dismissed for want of jurisdiction.

THE case is stated in the opinion.

Mr. Salter S. Clark, for appellant, cited: Ex parte Schollenberger, 96 U. S. 369; Jones v. Andrews, 10 Wall. 327; St. Louis & San Francisco Railway v. McBride, 141 U. S. 127; Shaw v. Quincy Mining Co., 145 U. S. 444; Gracie v. Palmer, 8 Wheat. 699; Atkins v. Disintegrating Co., 18 Wall. 272; In re Louisville Underwriters, 134 U. S. 488.

Mr. Walter D. Edmonds, for appellees, cited: Smith v. Lyon, 133 U. S. 315, 319; In re Louisville Underwriters. 134 U. S. 488; Shaw v. Quincy Mining Co., 145 U. S. 444; Lake County v. Rollins, 130 U. S. 662; Cary v. Curtis, 3 How.

236.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

This was a bill filed by Friedrich Honorst, a citizen of the State of New York, "against the Hamburg-American Packet Company, a corporation organized and existing under the laws of the Kingdom of Hanover, Empire of Germany, and doing business in the city of New York; Henry R. Kunhardt, Sr.,

Opinion of the Court.

Henry R. Kunhardt, Jr., George H. Diehl, citizens of the United States and residents of the State of New York, and Arend Behrens and William Koester, citizens of the United States and residents of the State of New Jersey," for infringement of patent, in the Circuit Court of the United States for the Southern District of New York, September 15, 1888. September 17, the subpoena was served on Henry R. Kunhardt, Sr., as a defendant, and as general agent of the Hamburg Company.

November 5, 1888, a general appearance for all the defendants was filed, and on December 18, 1888, a demurrer on behalf of the Packet Company, assigning as grounds that the causes of action against the several defendants were distinct and unconnected, and hence that the bill was multifarious, and for want of equity. A motion was made by complainant, December 24, to amend, and on January 7, 1889, a motion by defendant to dismiss. On January 28, 1889, leave to amend was granted and the motion to dismiss denied, and, on February 2, 1889, the amendments were made. These consisted in the insertion of the word "jointly" in the allegation of the defendants' infringement, and also of the following allegation: "Your orator further states that all of the defendants above named are inhabitants of the city and county of New York; that the defendant, the Hamburg-American Packet Company, has its principal business office in this country, located in the city and county of New York; that the defendants Henry R. Kunhardt, Sr., Henry R. Kunhardt, Jr., George H. Diehl, Arend Behrens and William Koester are, and during the time of the infringements above set forth were, copartners under the firm name of Kunhardt & Co., and as such copartners are and were the agents and managers of the business of the Hamburg-American Packet Company in this country, and have their principal business office, as such, located in the city and county of New York, and that the said infringements were committed in the prosecution of such business, and all the defendants have coöperated and participated in all the said acts and infringements."

On February 16, 1889, defendant Hamburg Company served