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The courts of the United States have no probate jurisdiction.38 When, however, a statute or customary law of a State gave its courts jurisdiction of a suit to establish a lost will, or to set aside a probate of a will or to annul a will, it was held under former statutes that the Federal court might take jurisdiction of such a suit upon removal.39 A Federal court cannot undertake the general administration of a decedent's estate.40
cannot remove the condemnation The demand for a jury trial under the proceeding. Mt. Washington Ry. Co. North Dakota statute is equivalent v. Coe, 50 Fed. R. 637. That in New to the filing of an answer, and after Jersey a land-owner who has ap- the time to do this had expired, it pealed from the decision of the com- was held too late to remove the missioners should be regarded as the cause. Minneapolis, St. P. & S. S. defendant and may remove the ap- Ry. Co. v. Nestor, 50 Fed. R. 1. peal, but that he waives his right of 38 Fouvergne v. New Orleans, 18 removal by having the record of the How. 70; Southworth v. Howard, 11 proceedings sent to the State Su- Rep. 46; Reed v. Reed, 31 Fed. R. 49. preme Court by certiorari. Hudson But see Brodhead v. Shoemaker, 44 River R. & T. Co. v. Day, 54 Fed. R. Fed. R. 518. 545. That in Massachusetts a pro- 39 Gaines v. Fuentes, 92 U. S. 10; ceeding for the assessment of dam- Southworth v. Howard, 11 Rep. 46, ages suffered by millers by reason of under the Act of 1875. See also Ellis the diversion of water was remov- v. Davis, 109 U. S. 485; Reed v. Reed, able. Banigan v. Worcester, 30 Fed. 31 Fed. R. 49; Foster's Federal JudiR. 392. That condemnation proceed- ciary Acts, pp. 4, 27. ings are removable in North Carolina, It has been held that appeals from Postal Tel. C. Co. v. So. Ry. Co., 88 the decrees of Probate Courts admitFed. R. 803; in Colorado, Searle v. ting wills to probate are not removSchool District, 124 U. S. 197; Colo- able from the courts of New Hamprado Midland Ry. Co. v. Jones, 29 shire, In re Cilley, 58 Fed. R. 977; Fed. R. 193; in Michigan, where they Pennsylvania, In re Aspinwall's Esshould be removed from the Probate tate, 85 Fed. R. 851; and Arkansas, Court, Mineral Range R. Co. v. De Wahl v. Franz (C. C. A.), 100 Fed. R. troit & L. S. Copper Co., 25 Fed. R. 680. As to Indiana see Copeland v. 515; in Missouri, Kansas City & T. Bruning, 72 Fed. R. 5. But such R. Co. v. Interstate Lumber Co., 37 proceedings in Georgia were held to Fed. R. 3; in Oregon, No. Pac. Term- be removable from the appellate inal Co. v.
Lowenberg, 18 Fed. R. 339; court. Brodhead v. Shoemaker, 44 in Indiana, Terre Haute v. Evans- Fed. R. 518. Jurisdiction was taken ville, F. & T. H. R. Co., 106 Fed. R. of a proceeding under the Oregon 551; and in Iowa, where, if the land- statutes to contest a will. Richardowner alone appeals, the railway son v. Green (C. C. A.), 61 Fed. R. 423. company is considered as the defend. In Alabama upon a contest on the ant. Kirby v. Chicago & N. W. R. admission of a will to probate, the Co., 106 Fed. R. 551. The value person applying for the probate is placed upon the land by the owner, the plaintiff, and he cannot remove unless made in bad faith, is the value the cause. McDonnell v. Jordan, 178 of the matter in dispute. Postal Tel. U. S. 229, 237. C. Co. v. So. Ry. Co., 88 Fed. R. 803. 41 Byers v. McAuley, 149 U. 8. 608;
A proceeding in a court of probate under a statute providing for the trial there of claims against a decedent's estate, may be removed, although the State statute provides that such a court of probate shall have exclusive jurisdiction over such proceedings. An action in the nature of a quo warranto may be removed when it arises under the Constitution and laws of the United States. It seems that a proceeding upon an application for a habeas corpus cannot. It seems that no removal can be had, since the Act of 1887, of a suit of which the Circuit Court could not take original jurisdiction, such as an application for a mandamus; 4 a creditor's bill when the plaintiff has not reduced his claim to judgment; 45 or an action for a divorce. A suit which is ancillary and supplemental to a suit previously brought in a State court, and which is so connected with the original suit as to form an incident to it and be substantially a continuation of it, cannot be removed into a Circuit Court of the United States unless the original suit has been previously or may be simultaneously removed.47 A bill to
supra, § 9. Proceedings to deter- the State where the suit was brought mine whether the estate of a do- cannot be removed because of a difcedent is separate or community ference of citizenship between deproperty, In re Foley, 80 Fed. R. 949; fendant and relator. Place v. Illiand, it seems, proceedings upon the nois (C. C. A.), 69 Fed. R. 481. application of the widow for a year's 43 Kurtz v. Moffitt, 115 U. S. 487; support, McElmurray v. Loomis, 31 Snow v. U. 8., 118 U. S. 346, 354. Fed. R. 395, cannot be removed. But 44 Indiana ex rel. City of Muncie v. it has been held that a special pro- L E. & W. Ry. Co., 85 Fed. R. 1. ceeding by an administrator to ob- 45 Cates v. Allen, 149 U.S. 451; First tain a license to sell land may be Nat. Bank v. Praegler (C. C. A.), 91 removed, although not within the Fed. R. 689. original cognizance of the Federal 46 Barber v. Barber, 21 How. 582, court; and that such a proceeding, 584; Johnson v. Johnson, 13 Fed. R. although treated by the State court 193; Bowman v. Bowman, 30 Fed. as equitable in its nature, must be R. 849. A suit to enforce a decree placed on the common-law docket of awarding alimony might perhaps be the Federal court. Elliott v. Shuler, removed. Ibid. 50 Fed. R. 454.
47 Barrow v. Hunton, 99 U. S. 80, 41 Hess v. Reynolds, 113 U. S. 73; 82: Webber v. Humphreys, 2 Dill. Clark v. Bever, 139 U. S. 96, 102. See 223; Poole v. Thatcherdeft, 19 Fed. Wilson v. Smith, 66 Fed. R. 81. R. 49; Buford v. Strother, 3 McCrary,
42 Ames v. Kansas, 111 U. S. 449; 253; S. C., 10 Fed. R. 406; Flash v. Illinois v. Ill. Cent. R. Co., 33 Fed. R. Dillon, 22 Fed. R. 1; Chapman v. 721. But it has been held that a quo Barger, 4 Dill. 557; Wolcott v. Aswarranto brought to test a title to pen M. & S. Co., 34 Fed. R. 821; office in a corporation organized in Richmond & D. R. Co. v. Findley, 32
set aside a judgment or decree of a State court for mistake 48 or fraud which was not and could not, with the exercise of reasonable diligence, have been discovered before the decree passed beyond the control of the State court, may be removed.49
Fed. R. 641; Kalamazoo W. Co. v. it was held that removals can be Snavely, 34 Fed. R. 823; Marshall v. had of a motion for an execution Holmes, 141 U. S. 589; supra, & 21. against a stockholder under Mo. R. S., Such are statutory proceedings sup- & 2517, after judgment and return of plementary to execution, Webber v. execution against the corporation, Humphreys, 5 Dill 223; Poole v. Lackawana C. & I. Co. v. Bates, 56 Thatcherdeft, 19 Fed. R. 49; Buford Fed. R. 737; a bill in equity setting up v. Strother, 3 McCrary, 253; & Co, 10 a prior judgment for damages for a Fed. R. 406; Flash v. Dillon, 22 Fed. nuisance and a pending action at R. 1; including the appointment of a law for the same purpose, which receiver in such supplementary pro prays consolidation, a perpetual inceedings. Cour d'Alene Ry. & N. junction and damages subsequent Co. v. Spalding, 93 Fed. R. 28. A to the commencement of the pendpetition by the defendant after judg. ing action at law, Ladd v. West, 55 ment for plaintiff in ojectment to Fed. R. 353; and a bill to set aside have the defendant's damages al- a decree of a State court for fraud lowed to him. Chapman v. Barger, which does not show that the facts 4 Dill. 557. A suit in equity by the constituting the fraud were not tenant under a lease pending an ac within the knowledge of the comtion of ejectment to set up a defense plainant before the rendition of the which might by the State practice decree, or could not have been dishave been pleaded in the action of covered in time to bring them in ejectment. Richmond & D. R. Co. some appropriate mode to the attenv. Findley, 32 Fed. R. 621. See Cable tion of the State court while the de v. Ellis, 110 U. S. 389; Johnson v. cree was within its control. Nougué Christian, 125 U. S. 612. A proceed. v. Clapp, 101 U. S. 551; Graham v. ing by the plaintiff, after a decree Boston H. & E. R. Co., 118 U. S. 161, establishing his right to the products 177; Marshall v. Holmes, 141 U. S. of a mine, to enforce his rights un. 589, 600. der the decree against the defendant 48 Pelzer Mfg. Co. v. Hamburg B. to the original suit and a third per. F. Ins. Co., 62 Fed. R. 1. son who claims a superior title by 49 Marshall v. Holmes, 141 U. S. 589, purchase. Wolcott v. Aspen M. & S. 600; Johnson v. Waters, 111 U. S. 640. Co., 34 Fed. R. 821. A proceeding 667; Arrowsmith v. Gleason, 129 U. S. against the directors of a defunct 86, 101; Carver V. Jarvis-Conklin railway company which has passed Mtge. Tr. Co., 73 Fed. R. 9. So it has out of existence pending a suit been held of a proceeding to enjoin against it, seeking to hold them lia- the violation of a decree by a stranger ble to the original plaintiff under a to the suit. Ward v. Congress Const. State statute to the extent of its Co. (C. C. A.), 99 Fed. R. 598. And a assets in their hands. Houston & feigned issue in Pennsylvania to try Texas Cent. R. Co. v. Shirley, 111 the validity of a judgment obtained U. S. 358. See also Hospes v. N. W. by a creditor. Fuller v. Wright, 23 Mfg. & C. Co., 22 Fed. R. 565. But Fed. R. 833.
A creditor's bill founded on a State judgment may be removed.50 A suit in which a State court has appointed a receiver may be removed; 51 and so may a suit for the appointment of a receiver ancillary to one previously appointed by a court of another State.52
A case where the record does not show that the Federal court could otherwise take jurisdiction cannot be removed by consent; 53 and where consent is given because of prejudice or local influence, an order of removal upon that ground must be obtained. 54 An agreement by a corporation not to remove into a Federal court any suit brought against it within a State (is void.55 A State has the power to exclude from its limits any corporation not engaged in interstate or international commerce and not in the service of the United States; and it seems that the courts will not examine into the reasons for such exclusion, provided the statute under which it is made is constitutional, although the corporation is excluded because it has removed a case into a Federal court.56 A State court cannot enjoin the removal of a case.57 A stipulation not to remove a specified suit into a Federal court has been held valid.58
§ 384. Separable controversies.— To entitle a defendant to a removal on account of the separability of a controversy from the rest of the case, there must exist a separate cause of action on which a separate suit could be brought and complete relief afforded distinct from the rest of the case, and of which
50 Kalamazoo Wagon Co. v. Snavely, 535; Gloucester F. Co. v. Pennsyl. 34 Fed. R. 823.
vania, 114 U. S. 196; Phila. F. Ass'n 51 In re Iowa & M. Const.Co., 10 Fed. v. New York, 119 U. S. 110; Barron R. 401. Whether an action of replevin v. Burnside, 121 U. S. 186; Chicago, M. brought against a State sheriff to re- & St. P. Co. v. Becker, 32 Fed. R. 849; cover property on which he has levied So. Pac. Co. v. Denton, 146 U. S. 202, by writ of attachment can be re- 207; In re Foley, 76 Fed. R. 390. See 'moved, has been doubted. Burnham Am. Law Review for May-June, 1892, v. First Nat. Bank (C. C. A.), 53 Fed. and September-October, 1892. R. 163.
56 Insurance Co. v. Morse, 20 Wall. 52 Shinney v. N. A. Sav. L. & B'g Co., 445; Barron v. Burnside, 121 U. S. 186. 97 Fed. R. 9.
67 Blydenstein v. N. Y. S. & Tr. Co., 53 People's Bank v. Calhoun, 102 59 Fed. R. 12. A stay in a State court U. S. 256.
does not prevent a removal. Hulbert 54 Olds Wagon Works v. Benedict v. Russo, 64 Fed. R. 8. (C. C. A.), 67 Fed. R. 1.
58 Hanover Nat. Bank v. Smith, 13 55 Paul v. Virginia, 8 Wall. 168; Blatchf. 224. Doyle v. Continental Ins. Co., 94 U. S.
all the parties on one side are citizens of different States from all the parties on the other. The case must be separable into parts, so that in one of the parts a controversy will be pre
§ 384. 1 It has been held that the company seeking a return of the confollowing cases presented separable sideration advanced by the subcontroversies and consequently could scriber and a declaration that the be removed: A suit for a convey- plaintiff was entitled to a first lien ance of an undivided interest in lands upon the railroad, which had been held by a corporation together with bought by another company, to which an accounting by such corporation suit a party that had subsequently of a similar proportion of the pro- begun proceedings to foreclose a lien ceeds of lands by it sold, and also for claimed for the construction of the an accounting by individual defend- railroad had been made a defendant. ants for the proceeds of the sale of Foster v. Chesapeake & M. Ry. Co., lands acquired under the same title *47 Fed. R. 369. But see Fidelity I., Tr. and sold by them before title was & S. D. Co. v. Huntington, 117 U. S. acquired by the defendant corpora- 280; In re San Antonio & A. P. Ry. tion. Barney v. Latham, 103 U. S. Co., 44 Fed. R. 145; Turnbull Wagon 205. A suit to establish an indebt- Co. v. Linthicum Carriage Co., 80 edness against an insolvent corpora- Fed. R. 4. A suit by a second chattel tion and for judgment against a sec- mortgagee asking for a specific atond defendant which had assumed tachment, which was issued against the indebtedness of the first corpora- the goods, and that his mortgage be ton. Mecke v. Valleytown M. Co. (C. declared paramount to the first C. A.), 93 Fed. R. 697; but see Lewis mortgage in which the mortgagor v. Weidenfeld, 76 Fed. R. 145. A and the first mortgagee were destatutory proceeding to recover the fendants. Capital City Bank v. possession of land, Stanbrough v. Hodgin, 22 Fed. R. 209. Contra, Cook, 38 Fed. R. 369; or to quiet title, Fidelity I., Tr. & S. D. Co. v. HuntBacon v. Felt, 38 Fed. R. 870; Bates ington, 117 U. S. 280; Marsh v. Atv. Carpentier, 98 Fed. R. 452; but see lanta & F. R. Co., 53 Fed. R. 168; Little v. Giles, 118 U. S. 596; or to Thurber v. Miller (C. C. A.), 67 Fed. condemn property for public use, R. 371; Maher v. Tower Hotel Co., even where the bill alleged that all 94 Fed. R. 225; Bissell v. Canada & of the defendants made some claim St. L. Ry. Co., 39 Fed. R. 225; Sharon under a certain deed, when it did not v. Tucker, 144 U. S. 533; Turnbull limit the controversy to the validity Wagon Co. v. Linthicum C. Co., 80 of such deed, Bacon v. Felt, 38 Fed. Fed. R. 4; Oakes v. Yonah L. & Min. R. 570; Pacific R. R. Removal Cases, Co., 89 Fed. R. 243. A suit to enforce 115 U. S. 223; N. Y., N. H. & H. Co. v. a right of subrogation to several polCockcroft, 46 Fed. R. 881; N. Pac. T. icies of fire insurance and to collect Co. v. Lowenberg, 18 Fed. R. 339; losses upon them resulting from the Chicago v. Hutchinson, 15 Fed. R. same fire. Insurance Co. of N. A. v. 129; Sugar Creek P. B. & P. C. R. Co. Delaware Mut. Ins. Co., 50 Fed. R. v. McKell, 75 Fed. R. 34; where the 243. A suit to recover the possession defendants claimed under different of town bonds when the party in titles and did not set up a joint de- possession disclaimed all interest in fense. A suit to rescind a subscrip them except a lien for storage and tion to stock of an insolvent railroad counsel fees, while one of the depos