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the commissioners, that trial cannot take place in the Federal court. Neither the Supreme Court nor the Circuit Court of Appeals nor a State court can review the proceedings by certiorari, although the State statute gives that right of review to a State court. The proceedings can only be reviewed by writ of error. No writ of error lies "until after final judgment disposing of the whole case, and adjudicating all the rights, whether of title or of damages, involved in the litigation. The case is not to be sent up in fragments by successive writs of error." 16 No writ of error lies to review the order appointing the commissioners of appraisal, although that order may be reviewed on a writ of error to the final order in the proceeding." It has been beld that provisions in the State statutes granting costs and counsel fees to the party whose land is taken will be followed by the Federal court; 18 but that upon the dismissal of a condemnation proceeding costs cannot be awarded against the United States, although the State practice allows costs against the petitioner in such a case. 19 An attorney appointed by the court to protect the interests of absent property owners may, perhaps, recover compensation in an independent suit against the United States.20 Proceedings to condemn lands for fortifications and other works of defense, under the act of August 18, 1890, are properly instituted in a District Court of the United States," although they may also be instituted in a State court.22

13 Ibid.

19 Carlisle v. Cooper, 64 Fed. R. 472. 14 Ibid.

20 Ibid., 64 Fed. R. 472, 476. 15 Ibid.

21 26 St. at L 316; U. S. v. Enge 16 Ibid. But see Wheeling & Bel- man, 45 Fed. R. 546; Chappell v. U.S. mont Br. Co. v. Wheeling Br. Co., 138 (C. C. A.), 81 Fed. R. 764; Chappell v. U. S. 287, 290.

U. S., 160 U. S. 499. 17 Ibid.

22 Ibid. 18 U. 8. v. Engeman, 46 Fed. R. 898.

CHAPTER XXIX.

REMOVAL OF CAUSES.

$382. Removal of causes from one Federal court to another.- Suits may be removed from a District Court to a Circuit Court of the United States, from a Circuit Court of the United States to another such Circuit Court, from a Territorial Court to a Circuit Court of the United States, and from a State court to a Circuit Court of the United States. When the judge of a District Court is unable to hold court and to perform the duties of his office, the circuit judge or justice may, upon an application in writing by the district attorney or marshal of the district, accompanied by satisfactory evidence of such disability, order the clerk of the District Court to certify into the next term of the Circuit Court to be held in that district all pending suits and processes. Upon such certification, and the publication of such order in a newspaper published in the district at least thirty days before the session of the Circuit Court, the Circuit Court proceeds to hear and determine the suits and processes so certified? All bonds and recognizances taken for and returnable into such District Court are then held to be taken for and returnable into such Circuit Court, and to have the same effect therein as in the District Court. The death of a district judge does not authorize such an order. After such an order has been made, the clerk continues to certify to the Circuit Court all suits, pleas, and processes, civil and criminal, thereafter begun in the District Court; and the Circuit Court takes, hears, and determines them till the disability is removed, when such suits and proceedings as are still pending and undetermined must be remanded by the Circuit to the District Court.5

When it appears in any civil suit in a Circuit Court that all of the judges thereof who are competent to try the case are in $ 382. 1 U. S. R. S., & 587.

4 Ex parte U. S., 1 Gall. 338. 2 U. S. R. S., & 587.

5 U. S. R. S., § 588. 3 U. S. R. S., $ 587.

any way interested therein, or have been of counsel for either party, or are so related or connected with either party as to render it, in the opinion of the court, improper for them to sit upon the trial, the court must order the fact to be entered on the record, and order the certification of the cause to the most convenient Circuit Court in the next adjoining State, or in the next adjoining circuit, that is, ordinarily the nearest Circuit Court, with a judge competent to try the cause; and the court to which the cause is thus certified must then hear and determine the case, unless the circuit justice or judge thereof remands it. 6

When a Territory is admitted as a State, and a District Court established therein, such District Court takes cognizance of and hears and determines all cases pending undetermined in the Superior Court of such Territory, from the judgments or decrees to be rendered in which writs of error could have been sued out or appeals taken to the Supreme Court of the United States.?' All records of proceedings in cases pending in the court of appeals of such a Territory at the time of its admission, and all records of proceedings in which judgments or decrees had been rendered in such a Territorial court before that time, and from which writs of error could have been sued out or appeals taken, or from which writs of error had been taken, or appeals taken and prosecuted to the Supreme Court of the

6 U. S. R. S., SS 615, 616; Richard. Fed. R. 713; Hamilton v. The Walla son v. Boston, 1 Curt. 250; Supervis- Walla, 44 Fed. R. 4; Johnson v. ors v. Rogers, 7 Wall. 175; Sawyer v. Bunker Hill & S. M. & C. Co., 46 Fed. Oakman, 11 Blatchf. 65; Stuart v. R. 417; Burke v. Bunker Hill & S. M. Laird, 1 Cranch, 299. See Lewis v. & C. Co., 46 Fed. R. 644; Back v. Johnson, 90 Fed. R. 673.

Sierra Nevada Con. Min. Co., 46 Fed. 7U. S. R. S., & 569; 25 St. at L., R. 673; Kenyon v. Knipe, 46 Fed. R. ch. 180, $ 22, p. 682; Forsyth v. U. S., 309; Washington & Idaho R. Co. v. 9 How. 571; Ames v. Colorado Cent. Cour d'Alene Ry. & Nav. Co., 160 R. CO., 4 Dill. 251; Gaffney v. Gillette, U. S. 77; Glaspell v. No. Pac. R. Co., 4 Dill. 264, n.; Strasburger v. Beecher, 144 U. S. 211; Koenigsberger v. Rich44 Fed. R. 209; U. S. v. Lynde, 44 Fed. mond S. Min. Co., 158 U. S. 41; CowR. 215; Nickerson v. Crook, 45 Fed. ley v. No. Pac. R. Co., 159 U. S. 569; R. 658; Carson v. Donaldson, 45 Fed. McCormick v. W. U. Tel. Co. (C. C. A.), R 821; Dunton v. Muth, 45 Fed. R. 79 Fed. R. 449; U. S. v. Baum, 74 Fed. 390; Bluebird Min. Co. v. Murray, 45 R. 43; Hecht v. Metzler, 82 Fed. R. Fed. R. 388; Herman v. McKinney, 340; Sargent v. Kindred, 49 Fed. R. 43 Fed. R. 689; Dorne v. Richmond 485; Crown Pt. Min. Co. v. Ontario S. Min. Co., 43 Fed. R. 690; U. S. v. S. M. Co., 74 Fed. R. 419; Fraser v. Taylor, 44 Fed. R. 2; Carr v. Fife, 44 Trent, 74 Fed. R. 423.

United States, must be transferred to and deposited in the District Court for such new State.S

$ 383. Cases which may be removed from a State court to a Circuit Court of the United States.- By section 2 of the Judiciary Act of 1875, as amended in 1887, “Any suit of a civil nature at law or in equity arising under the Constitution or laws of the United States or treaties made, or which shall be made, under their authority, of which the Circuit Courts of the United States” have original jurisdiction, whether now pending or hereafter brought, “may be removed by the defendant or defendants thereto from a State court into the Circuit Court of the United States for the proper district."1 Where the plaintiff's pleading does not show that his cause of action arises under the Constitution or laws of the United States, the defendant cannot remove the case because his defense depends upon a provision of such laws or Constitution. An omission in this respect in the plaintiff's pleading is not cured by an amendment of the same filed after the petition for a removal."

Any other suit of a civil nature, at law or in equity, of which the Circuit Courts of the United States have original jurisdiction under the Judiciary Act of 1887, namely, in which there is a controversy between citizens of different States or a controversy between citizens of a State and foreign States, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, or in which there is a controversy between citizens of the same State claiming lands under grants of different States, can be removed into the Circuit Court of the United States for the proper district

2

8 U. S. R. S., SS 567, 568; Benner v. join in the petition for a removal. Porter, 9 How. 235; Forsyth v. U.S., Yarnell v. Felton, 104 Fed. R. 161; 9 How. 571; Express Co. v. Kountze, Chicago, R. L & Pac. Ry, Co. v. Mar8 Wall. 342

tin, 178 U. S. 245. But see So. Pac. $ 383. 1 24 St. at L., ch. 373, p. 552. R. Co. v. Townsend, 62 Fed. R. 161. See supra, SS 15, 17. It has been Oregon S. L. & U. N. Ry. Co. v. held that a case arising under the Skottowe, 162 U. S. 490; Tennessee revenue laws cannot be removed v. Union & P. Bank of Com., 152 unless the value of the matter in U. S. 454; Chappell v. Waterworth, dispute, exclusive of interest and 155 U. S. 102; Postal Tel. C. Co. v. costs, exceeds $2,000, although the Alabama, 155 U. S. 482; East L L. Federal court might have had origi- Co. v. Brown, 155 U. S. 488, 180 U. S. nal jurisdiction over the same. 535. Johnson v. Wells, Fargo & Co., 91 3 Caples v l'exas & P. Ry. Ca, 67 Fed. R. 1. All the defendants must Fed. R. 9.

only by the defendant or defendants therein;' and not by them, except when they claim land under grants of different States, unless they are non-residents of that State; nor, it seems, unless they all unite in the application for a removal 6 in every case where there is no separable controversy.” It has been held that the section of the Removal Act just cited refers only to the general grant of jurisdiction at the beginning of the preceding section of the statute, not to the special regulations as to the district in which an action may be commenced; that consequently a suit pending in a State court between citizens of different States, no one of whom is a citizen or resident of the State where the suit is brought, may be removed into the Federal court in the district including that State, and

4 24 St. at L. 552; Fletcher v. Ham United States, although the latter let, 116 U. S. 408; Houston & T. C. and the party on the other side are R. Co. v. Shirley, 111 U. S. 358; Mills citizens of different States. Tracy v. Newell, 41 Fed. R. 529; supra, v. Morell, 88 Fed. R. 801; King v. SS 15, 16, 18-24. But see Mutual Life Correll, 106 U. S. 395; Merchants' C. Ins. Co. v. Champlin, 21 Fed. R. 85; P. & S. Co. v. Insurance Co. of N. A., Foster's Federal Judiciary Acts, 26- 151 U. S. 368, 386. It was held that 29.

such a suit is removable. Roberts v. 5 Martin v. Snyder, 148 U. S. 663: Pac. & A. Ry. & Nav. Co., 104 Fed. Wichita Nat. Bank v. Smith (C. C. R. 577. “It is well settled that, as reA.), 72 Fed. R. 568. It has been held gards the right of removal, substithat a resident alien defendant can- tuted parties have no other nor not thus remove a case unless there greater rights than the party in is a Federal question, Walker v. whose stead they are substituted.” O'Neill, 38 Fed. R. 374; Cooley v. Mc- Burnham v. First Nat. Bank of Leith Arthur, 35 Fed. R. 372; Cudahy v. (C. C. A.), 53 Fed. R. 163, 166, per McGeoch, 37 Fed. R. 1; that a suit Shiras, J. brought in a State court by an alien 6 Fletcher v. Hamlet, 116 U.S. 408; against a non-resident citizen of an- Houston & T. C. R. Co. v. Shirley, 111 other State, Sherwood v. Newport U. S. 358; Arkansas V. Sm. Co. v. N. & M. Tel Co., 55, Fed. R. 1; Uhle Cowenhoven, 41 Fed. R. 450; Thompv. Burnham, 42 Fed. R. 1; or against son v. Chicago, St. P. & K. C. Ry. a corporation incorporated by an- Co., 60 Fed. R. 773; Yarnell v. Felother State, Stalker v. Pullman's ton, 102 Fed. R. 369. Contra, Mutual Palace Car Co., 81 Fed. R. 989; can Life Ins. Co. v. Champlin (S. D. N. Y.), be removed by the defendant. The 21 Fed. R. 85; Garner v. Second Nat. naturalization of an alien who has Bank of Providence (D. R. I.), 66 Fed. removed a case does not justify a R. 369; Boston S. D. & Tr. Co. v. remand. Haracovic v. Standard Oil Mackay (S. D. N. Y.), 70 Fed. R. 801. Co., 105 Fed. R. 785. It is doubtful 7 See infra, § 384 whether a suit can be removed in 8 Amsinck v. Balderston, 41 Fed. which an alien is on the same side R. 641, per Gray, J.; Uhle v. Burnof the controversy as a citizen of the ham, 42 Fed. R 1; Baltimore & 0.

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