6 8 must be filed was held to be a sufficient excuse. If the removing party is forced by his adversary to remain in the State court, such adversary waives the requirement of the law as to the time of filing the record until the State court lets go its jurisdiction. It has been held that before the first day of the succeeding term either party may obtain leave from the Circuit Court to file the record, or even file the record without such leave; and that, after the record is filed, the Federal court has jurisdiction to remand the case or grant a proyisional remedy; but that the cause cannot be heard and determined until the time named in the bond has expired. It has been held, under a rule in the Ninth Circuit, that the plaintiff may file the record in the Federal court at any time after the filing of the petition and bond in the State court by the defendant, and that after the service of notice of such filing the Federal court will take jurisdiction of the cause for all purposes.10 Where the Circuit Court is held in different places in the district, the record should be filed in the clerk's office at that place where the suit was pending in the State court, or in the nearest and most convenient place to that where such court is held," but, it seems that the filing of the record in another office of the clerk of the same Federal court is not a ground for a remand.12 The pleadings are part of the record, which must be filed.13 So are 3 Burgunder v. Browne, 59 Fed. R. 497. But see Hatch's Adm'x v. Wadley, 84 Fed. R. 913. 529; Thompson v. Chicago, St. P. & K. C. Ry. Co., 60 Fed. R. 773; Ryder v. Bateman, 93 Fed. R. 16. But see 4 Railroad Co. v. Koontz, 104 U. S. Railroad Co. v. Koontz, 104 U. S. 5; 5, 16. 5 Mahoney M. Co. v. Bennett, 5 Saw. 141; Commercial & S. Bank v. Corbett, 5 Saw. 172; Hartford & C. W. R. Co. v. Montague, 94 Fed. R. 227. Contra, see Hamilton v. Fowler, 83 Fed. R. 321; K. C. & T. R. Co. v. Interstate Lumber Co., 36 Fed. R. 9. 6 Anderson v. Appleton, 32 Fed. R. 855; Mills v. Newell, 41 Fed. R. 529; Thompson v. Chicago, St. P. & K. C. Ry. Co., 60 Fed. R. 773. See Delbanco v. Singletary, 40 Fed. R. 177. 7 Anderson v. Appleton, 32 Fed. R. 855; Delbanco v. Singletary, 40 Fed. R. 177; Mills v. Newell, 41 Fed. R. Kansas City & T. R. Co. v. Interstate 8 Mahoney M. Co. v. Bennett, 5 Saw. 141; C. & S. Bank v. Corbett, 5 Saw. 172; Kansas City & T. Ry. Co. v. Interstate L. Co., 36 Fed. R. 9. 9 Matter of Barnesville & M. R. Co., 2 McCrary, 216. But see Delbanco v. Singletary, 40 Fed. R. 177. 10 Delbanco v. Singletary, 40 Fed. R. 177. 11 Cobb v. Globe M. L. Ins. Co., 3 Hughes, 452. See Henderson v. Cabell, 43 Fed. R. 257, 259. 12 Henderson v. Cabell, 43 Fed. R. 257. 13 McBratney v. Usher, 1 Dill. 367. 14 all depositions on file in the State court; " and also, it has been said, entries in the journals of the court.15 An omission of a small part of the record is not a ground for a remand, but may be cured upon a suggestion of a diminution of the record.16 1 § 391. Practice after removal.-The statute provides "that the Circuit, Court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said Circuit Court, and the same proceedings had been taken in such suit in said Circuit Court as shall have been had therein in said State court prior to its removal." It has been doubted whether, after removal, the complaint may be amended so that process can be served by publication. If the suit in the State court is in its nature an action at common law, no repleader is necessary after the removal. When it is in its nature equitable, a repleader is customary, but not indispensable if the allegations in the pleading in the State court are sufficient. When the suit in the State court unites legal and equitable grounds of relief or defense, as authorized by the State statute, it may be recast into two cases after the removal." In such a case a repleader is necessary. 931. The necessity of a repleader may be 14 Miller v. Tobin, 18 Fed. R. 609. 16 Ibid. in a State court and subsequently removed. Earle v. Seattle L. S. & E. Ry. Co., 56 Fed. R. 909. 5 Perkins v. Hendryx, 23 Fed. R. § 391. 118 St. at L. 470, § 6; 25 St. 418; Lacroix v. Lyons, 27 Fed. R. 403; at L, ch. 433. La Mothe Mfg. Co. v. National T. 2 Adams v. Heckscher, 80 Fed. R. Works Co., 15 Blatchf. 432; Phelps 742; supra, § 97. V. Dart v. McKinney, 9 Blatchf. 359; Merchants' & M. Nat. Bank Wheeler, 13 Blatchf. 218; Bills v. N. O., St. L. & C. R. Co., 13 Blatchf. 227. But see Whittenton v. M. & O. R. P. Co., 19 Fed. R. 273; No. Pac. R. Co. v. Paine, 119 U. S. 561. But see M'Connell v. Provident Sav. L. Ass. Soc. (C. C. A.). 69 Fed. R. 113, 115. Dillon on Removal of Causes, § 47 (4th ed.), p. 76; Durgan v. Redding, 103 Fed. R. 914. But see Whittenton v. M. & O. R. P. Co., 19 Fed. R. 273. It has been held that Rule 94 does not apply to a bill brought v. Elliott, 26 Fed. R. 881; No. Pac. R. Co. v. Paine, 119 U. S. 561. 6 Hurt v. Hollingsworth, 100 U. S. 100; Lacroix v. Lyons, 27 Fed. R. 403. Cf. Ladd v. West, 55 Fed. R. 353, 355; In re Foley, 76 Fed. R. 390; M'Connell v. Provident Sav. L. Ass. Soc. (C. C. A.), 69 Fed. R. 113. It has been held that a plaintiff cannot, after a removal, so amend his pleading as to change a cause of action in equity for cancellation of a contract into a cause of action at law for deceit in procuring such contract. Blalock v. Eq. Life Ass. Soc., 73 Fed. R. 655. raised by a motion for a repleader' or by a demurrer. If no repleader is then had, so much of the pleadings as presents matters not cognizable on that side of the court to which the case is removed will be stricken out or disregarded, without prejudice to its presentation in a new suit. When the plaintiff proceeds after removal upon the wrong side of the court, the proper practice is to sustain a demurrer to his pleading, without prejudice to his right to replead on the other side of the court.10 No stipulation of the parties can make the case cognizable on either side of the court to which it does not properly belong." It has been held at Circuit, that, where the State practice permits affirmative relief by an answer without a cross-bill, an answer seeking affirmative relief filed before a removal will be sufficient, and that a cross-bill need not be filed in the Federal court.12 It has been held in the Eighth Circuit that, if the suit is of an equitable nature, the defendant's right to plead does not expire until the second rule-day after his appearance, although his answer was due when the petition for removal was filed.13 In the Second and Fourth Circuits it has been said that the time for pleading in equity and at common law is suspended until the record is filed, and then begins to run again, computing with it the time which had passed in the State court before the removal; 14 but in the Fourth Circuit it has been held that where, before removal, the time to plead has been extended to a fixed day, which is previous to the filing of the record, the defendant should plead on the day he files the rec 7 Whittenton Mfg. Co. v. Memphis & O. R. P. Co., 19 Fed. R. 273. Orton v. Smith, 18 How. 263, 266; 8 Perkins v. Hendryx, 23 Fed. R. (C. C. A.), 69 Fed. R. 113. Otherwise 418. 9 Perkins v. Hendryx, 23 Fed. R. 418; Lacroix v. Lyons, 27 Fed. R. 403; La Mothe Mfg. Co. v. Nat. T. Works Co., 15 Blatchf. 432; Phelps v. Elliott, 26 Fed. R. 881; No. Pac. R. Co. v. Paine, 119 U. S. 561, 563. 10 Perkins v. Hendryx, 23 Fed. R. 418, 419; Bacon v. Felt, 38 Fed. R. 870. But see Pilla v. German S. Ass'n, 23 Fed. R. 700, 702; Phelps v. Elliott, 26 Fed. R. 881, 883; Thompson v. Railroad Co., 6 Wall. 134, 139; when the suit is begun in the Federal court. Hirsh v. Jones, 56 Fed. R. 137. 11 South Alabama Devel. Co. v. Orman, 55 Fed. R. 18. 12 Detroit v. Detroit City Ry. Co., 55 Fed. R. 569, 575. 13 Webster v. Crothers, 1 Dill. 301. 14 Heidecker v. Red Star L. S. S. Co., 32 Fed. R. 706; Pelzer Mfg. Co. v. St. Paul F. & M. Ins. Co., 40 Fed. R. 185. ord.15 In the Sixth Circuit the rule seems to be, that the running of the time to plead is suspended till the time fixed by the statute for the filing of the record, although the record is filed by order of the court before the statutory time.16 In the District of Indiana, at common law, a pleading is in time if filed before the time fixed by a rule of the State court, whether general or special.1 The removal of the case, even when not accompanied by a special appearance, does not waive the objection that the defendant was not regularly served with process in the State court.18 It has been held that a defendant properly served with process within the State cannot, after the removal, have the suit dismissed upon the ground that he was not served within that Federal district,19 or remanded because neither he nor the plaintiff resides within the Federal judicial district;20 and that where a motion to set aside the service had been denied by the State court it could not be renewed in the Federal court after removal without special permission.21 "Wherever there is a total absence of jurisdiction over the subject-matter in the State court, so that it had no power to entertain the suit in which the controversy was sought to be litigated in its then existing or any other form, there can be no jurisdiction in the Federal court to entertain it on removal, although 15 Phanixton Co. v. Charleston B. Federal Circuit Court will not, Co., 65 Fed. R. 628. where the non-resident defendant 16 Torrent v. S. K. Martin L. Co., 37 has voluntarily removed the cause, Fed. R. 727. allow him to dismiss it as to that 17 Amsden v. Norwich U. F. Ins. property on the sole ground that the Soc., 44 Fed. R. 515. 18 Goldey v. Morning News, 156 U. S. 518; Wabash W. R. Co. v. Brown, 164 U. S. 271; Nat. Acc. Ass'n v. Spiro, 164 U. S. 281; supra, § 100. It has been held that a removal waives an objection that the suit was brought in the wrong county of the State. Hinds v. Keith, 57 Fed. R. 10. "Where the State court has, by levy made under attachment and personal service effected before removal, properly acquired jurisdic tion of the case, to the extent, at least, of being entitled to enforce its judgment against the property, the court could not have acquired original jurisdiction of such property by the issue of an attachment." Lacombe, J., in Vermilya v. Brown, 65 Fed. R. 149, citing N. Y., L. E. & W. R. Co. v. Estill, 147 U. S. 591. 19 Friezen v. Allemania F. Ins. Co., 30 Fed. R. 349. 20 Kansas City & T. R. Co. v. Interstate L. Co., 37 Fed. R. 3, 5; Burck v. Taylor, 39 Fed. R. 581; Uhle v. Burnham, 42 Fed. R. 1; Amato v. N. Pac. R. Co., 46 Fed. R. 561. 21 Allmark v. Platte S. S. Co., 76 Fed. R. 615. 22 24 in some other form it would have plenary jurisdiction over the case made between the parties." If after amendment the pleadings do not allege the jurisdictional facts, the suit will not be dismissed if they appear in the petition for the removal.23 After a petition and bond for a removal have been filed, the pleading cannot be so amended by a reduction of the amount involved as to defeat the jurisdiction of the Circuit Court. It has been held that the plaintiff is estopped from claiming, upon a motion to remand, that the amount of his claim is less than alleged in his pleading in the State court; although a previous suit by him upon the same claim in the Federal court had been dismissed upon the ground that the matter in dispute was less than the jurisdictional amount. If the amount in dispute when the suit is commenced is sufficient to authorize a removal, no subsequent event can defeat the right to remove; 26 provided, that the original claim was made in good faith." After a Circuit Court of the United States has once rightfully acquired 22 Fidelity Trust Co. v. Gill Car Co., 25 Fed. R. 737, 739, per Hammond, J.; Hummel v. Moore, 25 Fed. R. 380; Elliott v. Shuler, 50 Fed. R. 454, 457; Swift v. Philadelphia & R. R. Co., 58 Fed. R. 858; Sutro v. Simpson, 14 Fed. R. 370; Goldstein v. New Orleans, 38 Fed. R. 626. Contra, Kelly v. Virginia P. Ins. Co., 3 Hughes, 449. It was held that in such a case the suit should be dismissed by the Federal court although it might have taken original jurisIdiction of the same. Auracher v. Omaha & St. L. R. Co., 102 Fed. R. 1. 23 Briges v. Sperry, 95 U. S. 401; State v. Coosaw Min. Co., 45 Fed. R. 804. "A removing defendant may supplement the case made by his petition by a reference to the facts which appear elsewhere in the record; but it has never been decided that he is at liberty to abandon the ground upon which his petition proceeds, and assert an inconsistent case, and it would be contrary to the spirit of the present removal act, which does not permit a plaintiff to remove a suit, to permit a defendant to avail himself of the privilege upon the theory that the suit is brought in his interest, and he is in reality the plaintiff." Wallace, J., in Mayer v. Denver, T. & Ft. W. R. Co., 41 Fed. R. 723. 24 Kanouse v. Martin, 15 How. 198; Green v. Custard, 23 How. 484; Wright v. Wells, 1 Pet. C. C. 220; Roberts v. Nelson, 8 Blatchf. 74. Where it is claimed that the amend ment was prior to the removal, that question must be tried in the Federal court. Waite v. Phoenix Ins. Co., 62 Fed. R. 769. 25 Henderson v. Cabell, 43 Fed. R. 257. See La Page v. Day, 74 Fed. R. 977. 26 Roberts v. Nelson, 8 Blatchf. 74; Fuller v. Met. L. Ins. Co., 37 Fed. R. 163. But see Iowa H. Co. v. Des Moines N. & R. R. Co., 8 Fed. R. 97; Maine v. Gilman, 11 Fed. R. 214; Nussbaum v. Northern Ins. Co., 40 Fed. R. 337. 27 Supra, §§ 16, 293. |