the same prejudice or local influence exists in all the counties in the State to which the venue could be changed; " unless a change of venue is discretionary and has been refused, or an opinion that it should not be granted has been expressed by the judge to whom the application in the State court would be made; or unless the same prejudiced judge may preside in the county to which the venue may be changed.12 11 The court may require notice of the application for a removal on account of prejudice or local influence to be served on the other side; permit a traverse of the facts alleged by the party seeking the removal; and try the facts as to prejudice or local influence before passing on the question.13 It has been held at circuit that the court may in its discretion grant the application ex parte, and refuse to allow the affidavit to be controverted. The court has discretionary power to allow a rehear 14 10 Rike v. Floyd, 42 Fed. R. 247; Goldworthy v. Chicago, M. & St. P. Ry. Co., 38 Fed. R. 769. An affidavit for the removal of an action for false imprisonment from the Circuit Court of Cook County, Illinois, to the United States Circuit Court, alleged that there had been four long jury trials involving the same matters before the Circuit Court of Cook County, a hearing before a justice of the peace, the grand jury, the appellate court, and the directors of the Board of Trade; that the case involved the manner of doing business on the Board of Trade; that it had caused a great deal of talk around the court-house, and had become widely known; that many warehousemen, elevator men, brokers, commission men, and many thousands of people in and around Cook county had discussed it; and that through the influence of plaintiff and his friends, defendants believed a prejudice had grown up against them, who were non-residents. It was held that, as the Illinois statute provides that a cause may be removed for local prejudice to some other court of competent jurisdic tion in some other convenient county, to which there is no valid objection, the existence of prejudice was not sufficiently shown to justify a removal to the Federal court, since the affidavit showed that the prejudice was confined mainly, if not entirely, to Cook county. Robison v. Hardy, 38 Fed. R. 49. But see Smith v. Crosby Lumber Co., 46 Fed. R. 819; Wolcott v. Watson, 46 Fed. R. 529, 532; Detroit v. Detroit City Ry. Co., 54 Fed. R. 1, 13. 11 Smith v. Crosby Lumber Co., 46 Fed. R. 819. 12 Wolcott v. Watson, 46 Fed. R. 529, 536. 13 Smith v. Crosby L. Co., 46 Fed. R. 819; Amy v. Manning, 38 Fed. R. 868; Malone v. Richmond & D. R. Co., 35 Fed. R. 625; Dennison v. Brown, 38 Fed. R. 535; Herndon v. Southern R. Co., 73 Fed. R. 307. It was held by the Circuit Court of Appeals for the Eighth Circuit that notice must be given. P. Schwenk & Co. v. Strang (C. C. A.), 59 Fed. R. 209. See Reeves v. Corning, 51 Fed. R. 774, 776. 14 Crotts v. Southern Ry. Co., 90 Fed. R. 1, and cases cited in note 17. 15 Adelbert College v. Toledo, W. & ing on affidavits by the plaintiff, but ordinarily will refuse a rehearing,16 "unless it is clearly made to appear that the court has been imposed upon or misled.” 17 21 Leave to move for a rehearing should first be obtained, even though the first application was ex parte.18 A plea to the petition for a removal, which simply denies the allegations as to the petitioner's belief, but not the allegations as to the existence of prejudice or local influence, does not raise an issue.19 It has been held, that when notice of the application is required, a notice served three days before the hearing is sufficient; and in that case two weeks' additional time was given to the party opposing the removal.20 It is the safer practice to have the affidavit made by the party seeking the removal, not by his attorney. When the affidavit is made in another State it should be attested so as to make it admissible according to the practice of the court where the suit is pending before the removal. The application must be made to the Federal court, and all questions thereby raised must be determined by the Federal court. The petition for a removal for prejudice and local influence must be presented to and filed in the Federal court, but it is the better practice to file in the State court a certified copy of the same, and of the order of the Federal court thereupon.24 An order of the Federal court granting or denying the application should be obtained and filed in the State court, and the transcript, including a copy of such order, W. Ry. Co., 47 Fed. R. 836, 843; Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. R. 535; Reeves v. Corning, 51 Fed. R. 774. Contra, P. Schwenk & Co. v. Strang, 59 Fed. R. 209. 16 Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. R. 836, 843; Carpenter v. Chicago, M. & St. P. Ry. Co., 47 Fed. R. 535; Reeves v. Corning, 51 Fed. R. 774. 17 Reeves v. Corning, 51 Fed. R. 774, 779. 20 Carson & R. L. Co. v. Holtzclaw, 39 Fed. R. 578. 21 Duff v. Duff, 31 Fed. R. 772; Speer on Removal of Causes, § 17, p. 26, note. 22 Bowen v. Chase, 7 Blatchf. 255; Speer on Removal of Causes, § 18, p. 26, note. 23 Kaitel v. Wylie, 38 Fed. R. 865; Huskins v. Cincinnati, N. O. & T. P. Ry. Co., 37 Fed. R. 504. 24 Malone v. Richmond & D. R. Co., 35 Fed. R. 625; Kaitel v. Wylie, 38 18 Carpenter v. Chicago, M. & St. P. Fed. R. 865; Short v. Chicago, M. & Ry. Co., 47 Fed. R. 535. 19 County Court of Taylor County V. Baltimore & O. R. Co., 35 Fed. R. St. P. Ry. Co., 33 Fed. R. 114; s. C., 34 subsequently filed in the Federal court.25 An entry in the record of the Circuit Court of a finding of the jurisdictional facts is not sufficient.26 A case may be removed for prejudice or local influence by any one of several defendants," and whether the controversy is separable or not.28 A defendant cannot remove a case be- . cause of prejudice and local influence in favor of another defendant with whom he has a separate controversy, when he and the plaintiff are citizens of the same State.29 A plaintiff against whom a counterclaim has been set up was in one case regarded as a defendant, and allowed a removal on the ground of prejudice and local influence." On a taxpayer's appeal from the decision of a board allowing a claim against a county, the claimant was considered as the plaintiff, and consequently denied the right to remove the case. All the parties on one side of the controversy must be citizens of different States from all of their opponents.32 It has been held that a suit to which an alien is a party cannot be thus removed; 33 that no suit can be thus removed unless all the plaintiffs are 25 Pennsylvania Co. v. Bender, 148 U. S. 255, 257, 258. 26 Tod v. Cleveland & M. V. Ry. Co., 65 Fed. R. 145; Pennsylvania Co. v. Bender, 148 U. S. 257. 27 Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. R. 849; Fisk v. Henarie, 32 Fed. R. 417; Detroit v. Detroit City Ry. Co., 54 Fed. R. 1; Haire v. Rome R. Co., 57 Fed. R. 321. It has been held: that a removal cannot be had unless all the parties on one side of the controversy are citizens of a different State from that of all the parties upon the other side. Terre Haute v. Evansville & T. H. R. Co., 106 Fed. R. 549. And that when a suit has been discontinued against the only defendant who was a citizen of a different State from the plaintiff, there must be a remand. Bane v. Keefer, 66 Fed. R. 545, 610. 28 Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. R. 849; Haire v. Rome R. Co., 57 Fed. R. 321. 29 Hanrick v. Hanrick, 153 U. S. 192. 31 30 Carson & R. L. Co. v. Holtzclaw, 39 Fed. R. 578. But see supra, § 383, note 10. Otherwise a plaintiff cannot remove a case upon this ground. Campbell v. Collins, 62 Fed. R. 849. 31 Tullock v. Webster County, 40 Fed. R. 706; Kirby v. Chicago & N. W. R. Co., 106 Fed. R. 551; supra, § 383, note 37. 82 Jefferson v. Driver, 117 U. S. 272; Cambria Iron Co. v. Ashburn, 118 U. S. 54; Young v. Parker's Adm'r, 132 U. S. 267; Anderson v. Bowers, 43 Fed. R. 321; Rike v. Floyd, 42 Fed. R. 247. Contra, Haire v. Rome R. Co., 57 Fed. R. 321; Jackson & S. Co. v. Pearson, 60 Fed. R. 113; Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. R. 849; Hall v. Chattanooga Agr. Works, 48 Fed. R. 599; Detroit v. Detroit City Ry. Co., 54 Fed. R. 1. 33 Cohn v. Louisville, N. O. & T. R. Co., 39 Fed. R. 727. See Grand Trunk Ry. Co. v. Twitchell (C. C. A.), 59 Fed. R. 627. citizens of the State where the suit is brought; and that if the controversy is separable, the Circuit Court may remand to the State court so much as does not affect the defendant who procured the removal, but that otherwise, the whole case remains in the Federal court.35 A case in which the matter in dispute does not exceed two thousand dollars cannot be removed on account of prejudice or local influence. It seems that the restriction as to suits by assignees applies to removals for prejudice or local influence.37 It has been held that, on an application for such a removal, the papers must show that the difference of citizenship existed when the suit was commenced, as well as when the petition is filed.* What constitutes a trial within the meaning of the Act of 1887 is unsettled. Under the old practice, it was held that the argument of a demurrer was a trial," and in a case at Circuit, that the argument of a contested motion for a preliminary injunction and an appeal from the order was a trial.40 Since the Act of 1887 a few cases at Circuit have held that the argument of a demurrer was not a trial;" that the entry of an order taking a bill as confessed is not a trial; 2 and that after an appeal from a decision of a State court of probate, when a trial of the facts is to be had before a jury in the appellate court, it is not too late before the second trial to remove the case for 34 Thouron v. East Tennessee, V. & G. Ry. Co., 38 Fed. R. 673; Niblock v. Alexander, 44 Fed. R. 306; Adelbert College v. Toledo, W. & W. Ry. Co., 47 Fed. R. 836; Gann v. Northwestern Ry. Co., 57 Fed. R. 417. 35 Whelan v. N. Y., L. E. & W. R. Co., 35 Fed. R. 849; Haire v. Rome R. Co., 57 Fed. R. 321, 323. But see Jefferson v. Driver, 117 U. S. 272; Cambria L. Co. v. Ashburn, 118 U. S. 54; Young v. Parker's Adm'r, 132 U.S. 267. B. & Q. Ry. Co., 17 Fed. R. 97; Sands v. Smith, 1 Dill. 290; Cook v. Whitney, 3 Woods, 715; Hone v. Dillon, 29 Fed. R. 465; Frelinghuysen v. Baldwin, 19 Fed. R. 49; Schnadig v. Flescher, 29 Fed. R. 465. 39 Alley v. Nott, 111 U. S. 472; Scharff v. Levy, 112 U. S. 711; Gregory v. Hartley, 113 U. S. 742. But see Hone v. Dillon, 29 Fed. R. 465. 40 Chicago, I. & N. P. R. Co. v. Minnesota & N. W. R. Co., 29 Fed. R. 337. 41 Whelan v. N. Y., L. E. & W. R. Fisk v. Henarie, Contra, Lookout Houston, 32 Fed. 36 In re Pennsylvania Co., 137 U. S. Co., 35 Fed. R. 849; 451, 457. 37 In re Pennsylvania Co., 137 U. S. 451, 456. But see Claflin v. Commonwealth Ins. Co., 110 U. S. 81. 38 Young v. Parker's Adm'r, 132 U. S. 267. See Johnson v. Monell, 1 Woolw. 390, 397; Miller v. Chicago, 32 Fed. R. 417, 425. 42 McHenry v. N. Y., P. & O. R. Co., 25 Fed. R. 65. See also Removal Cases, 100 U. S. 457, 473; Maloy v. Duden, 25 Fed. R. 673. prejudice or local influence;" and after the first trial has begun the case cannot be removed, although a new trial is subsequently directed." It has been held that a non-resident defendant, against whom a void order for taking the bill pro confesso was entered and afterwards set aside, can remove a case for prejudice or local influence at the first term at which the trial of the issues raised by its answer can be had if the trial has not begun." After the expiration of the time at which the removal was granted it was held to be too late to remove to remand a cause for prejudice or local influence. By failing to prosecute a motion for a remand of a case removed for prejudice or local influence, the plaintiff waives all objections to the removal which he is competent to waive, including the objection that the prejudice or local influence was not sufficiently proved; but not the objection that no order for the removal was made, nor that the petition failed to allege the jurisdictional facts." § 387. Practice on removals of suits containing controversies between citizens of the same State, claiming land under grants of different States.-The statute regulating the removals of suits in which there is a controversy between citizens of the same State claiming land under grants of different States, is as follows: "If in any action commenced in a State court the title of land be concerned, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of two thousand dollars, exclusive of interest and costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit, if the court require it, that he or they claim, and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power, and shall move that any one or more of the adverse party inform the court whether he 43 Brodhead v. Shoemaker, 44 Fed. R. 518. But see McDonnell v. Jordan, 178 U. S. 229. 44 Fisk v. Henarie, 142 U. S. 459; McDonnell v. Jordan, 178 U. S. 229. 45 Detroit v. Detroit City Ry. Co., 54 Fed. R. 1, 10, 11. 46 Crotts v. Southern Ry. Co., 90 Fed. R. 1; Parks v. Southern Ry. Co., 90 Fed. R. 3. 47 Tod v. Cleveland & M. V. Ry. Co., 65 Fed. R. 145. |