3

entered. So the period for demurring or answering is suspended by the filing of a sufficient petition and bond.* But the petition taken in connection with the record must make a case for removal upon which the State court must pass. Plaintiff may at any time after defendant has filed his petition and bond, file a transcript of the record in the circuit court, and after service of notice under rule of court, jurisdiction will attach for all purposes." In New York a cause cannot be tried as a cause until there is an issue, and not then unless the issue can be brought to trial by a notice, and extensions given to answer cannot defeat the right of removal. Under the Missouri statute for the condemnation of land by railway companies, the appointment of commissioners by the United States circuit court to assess damages is a proceeding in the cause, and will not be made prior to the next regular term after the removal. Where the questions presented by new pleadings in the circuit court are in all respects the same as those settled by the supreme court of the State, the parties are concluded by its decree.9

1 Heidecker v. Red Star Line Steamship Co., 32 Fed. Rep. 706.

2 Torrent v. Martin Lumber Co., 37 Fed. Rep. 727.

3 Torrent v. S. K. Martin Lumber Co., 37 Fed. Rep. 727.

4 Pelzer Mfg. Co. v. St. Paul F. & M. Ins. Co., 43 Fed. Rep. 185.

5 Angier v. E. Tenn. etc. R., 74 Ga. 634.

6 Delbanco v. Singletary, 40 Fed. Rep 177.

7 Winberg v. Berkeley County R. & Lumber Co., 29 Fed. Rep. 721. 8 Kansas City & T. R. Co. v. Interstate Lumber Co., 36 Fed. Rep. 9. 9 Duncan v. Gegan, 101 U. S. 810.

§ 109 e. Real party in interest.-Where the law of a State directs that all suits be brought in the name of the real party in interest, the Federal court may proceed in the name of the party who was the plaintiff in the State court.1 The Federal court after removal of an equity cause may compel plaintiff to amend his bill by including parties whom he has intentionally omitted, on pain of remanding the cause.2

1 Thompson v. Central Ohio R. Co., 73 U. S. 134. 2.Hunt v. Fisher, 29 Fed. Rep. 801.

§ 109 f. Practice and procedure. The case

comes into the circuit court in the same condition in which

it was in the State court;1 so where defendant has lost by his inaction the right to object to defective service of summons in the State court he cannot be permitted to plead it in abatement in the circuit_court.2 On removal in law cases pure and simple no repleader is necessary;3 but when the relief sought is both legal and equitable, plaintiff must replead in the Federal court. So where a suit in a State court unites legal and equitable matters, a repleader is necessary to frame the pleadings anew, so as to make it distinctively a suit at law, or one in equity, or to divide it into two suits, one at law and the other in equity; and the Federal court is competent to make all orders necessary to mold it into a legal or equitable case, or recast it into two cases, one at law and the other in

equity.6 A law action must proceed as such, although brought in the name of the real party in interest, instead of the party holding the bare legal title. The practice after removal is to be the same as if the cause had originally been brought in the Federal court; including the allowance of amendments which may be made in furtherance of justice, and within the scope of the original cause of action. The petition may be amended either by curing defective averments, or by substituting additional or new allegations;10 and where by mistake the plaintiff described himself in the original petition as a citizen of the State where suit was brought, he will be allowed to amend, and state his true citizenship.11 The equity prac tice and procedure of the Federal courts is regulated by the rules promulgated by the Supreme Court of the United States. 12 State laws will be enforced after removal of the cause; 13 so State laws as a rule of property will be followed. 14 The procedure in the circuit court is as of original cognizance, 15 and as in all cases originally brought therein. 16 The jurisdiction of the circuit court is in no sense appellate, and questions passed upon in the State court cannot be reviewed. 13 It will not review the orders and rulings made by the State court. 19 If the State court refused to set aside a summons when the party is exempt from service, the decision on a plea in abatement cannot be reviewed or reversed. 20 The res is transferred with the case;21 but funds in the hands of a sheriff are no part of the subject-matter, and the court

17

23

has no control over them;22 but it may require, after removal, the receiver appointed by the State court to account for funds in his hands, and make him chargeable with interest.23 Property in custody in a replevin suit should be sold, and the proceeds brought into court. 24 The suit brings along with it as an incident all the costs which accrued or attached under the State law. The acts of Congress apply only to subsequent costs. 25 If the amount recovered is less than five hundred dollars, the plaintiff cannot recover costs.26 If the petitioner has complied with the requirements of the act, he may, by answer, raise the question of loss of jurisdiction by reason of the proceedings for removal;27 and it is not necessary for him to plead the proceedings to the jurisdiction. 2 So a non-resident filing a petition and bond for removal is not a waiver of his right to object to the service on him while attending as a witness in another State. 29 Where a case is removed from a State to a Federal court, the time in which an execution can issue on a judgment or decree there rendered depends upon Federal, not upon State laws. 30 After the time for filing a plea in abatement in the State court had expired, the defendant removed the suit to the Federal court. Held, that he would not there be allowed to file such plea. The Federal courts preserve the essential distinctions between law and equity by administering them separately. If this distinction has not been observed by the State court, there must be a repleading after the case is removed; and this, even though the repleading may require more than one suit, and on both sides of the docke. 32

31

1 Werthein v. Contin. R. & T. Co., 11 Fed Rep. 689.

2 Werthein v. Contin. R. & T. Co., 11 Fed. Rep. 689.

3 Merchants etc. Nat. Bk. v. Wheeler, 13 Blatchf. 218; Bills v. New Orleans etc. R. R. Co., 13 Blatchf. 227; Dart v. McKinney, 9 Blatchf. 359. See as to former practice Martin v. Kanouse, 1 Blatchf. 149; S. C., 15 How. 198.

4 La Mothe Manuf. Co. v. Nat. Tube Wks., 15 Blatchf. 432.

5 Green v. Custard, 23 How. 484; Thompson v. Railroad Cos, 6 Wall. 134; Partridge v. Insurance Co., 15 Wall. 573; Hurt v. Hollingsworth, 100 U. S. 100; Akerly v. Vilas, 2 Biss. 110; Fisk v. Union P. R. Co., 8 Blatchf. 299; Dart v. McKinney, 9 Blatchf. 359; Sands v. Smith, 1 Dill. 290.

6 La Mothe Manuf. Co. v. Nat. Tube Wks., 15 Blatchf. 432; Sands v. Smith, 1 Dill. 290.

7 Thompson v. Railroad Cos., 6 Wall. 134; Weed Sew. Mach. Co. v. Wicks, 3 Dill. 261; Bushnell v. Kennedy, 9 Wall. 391; Knapp v. Railroad Co., 20 Wall. 117; Wood v. Davis, 18 How. 467. See Suydam v. Ewing, 2 Blatchf. 359.

8 Suydam v. Ewing, 2 Blatchf. 359; Akerly v. Vilas, 2 Biss. 110.

9 Toucey v. Bowen, 1 Biss. 81; Suydam v. Ewing, 2 Blatchf. 359; Barclay v. Levee Comm'rs, 1 Woods, 254; Dart v. McKinney, 9 Blatchf. 359; Houser v. Clayton, 3 Woods, 373. See Parker v. Overman, 18 How. 137. 10 Woolridge v. McKenna, 8 Fed. Rep. 650.

11 Barclay v. Levee Comm'rs. 1 Woods, 354; Houser v. Clayton, 3 Woods, 373. And see record amended by consent, Parker v. Overman, 18 How. 137.

12 Martindale v. Waas, 12 Fed. Rep. 551.

13 Taylor v. Ypsilanti, 105 U. S. 60; Ouachita Co. v. Wolcott, 2 Morr. Trans. 518; S. C., 11 Fed. Rep. 623; Soustiby v. Keeley, 11 Fed. Rep. 578, and note.

14 Burt v. Keyes, 1 Flippin, 61. pin, 120.

See Talcott v. Pine Grove, 1 Flip

15 Werthein v. Continental R. & T. Co., 12 Fed. Rep. 690; Karns v. Atantic & O. R. Co., 10 Fed. Rep. 309.

16 Bills v. N. O., St. L. etc. R. Co., 13 Blatchf. 227. See Howe S. M. Co. v.dwards, 15 Blatchf. 403; Kelly v. Virginia P Ins. Co., 3 Hughes, 449. 17 Bushnell v. Kennedy, 9 Wall. 387.

18 Brooks v. Farwell, 4 Fed. Rep. 166.

19 Smith v. Schwed, 11 The Reporter, 730.

20 Brooks v. Farwell, 4 Fed. Rep. 166.

21 Osgood v. Chicago etc. R. Co., 7 Ch. L. N. 241; 2 Cent. L. J. 275, 283. 22 Smith v. Schwed, 9 Fed. Rep. 483.

23 Hinckley v. Railroad Co., 100 U. S. 153.

24 Dennistoun v. Draper, 5 Blatchf. 336.

25 Warren v. Ives, 1 Flippin, 356; Scupps v. Campbell, 3 Cent. L. J. 521. Contra: Coggill v. Lawrence, 2 Blatchf. 301.

26 Brooks v. Phoenix Mut. L. Ins. Co., 15 Blatchf. 182.

27 Shaft v. Phoenix M. L. Ins. Co., 67 N. C. 511; De Camp v. N. J. M. L. Ins. Co., 2 Sweeny, 481.

28 Kanouse v. Martin, 15 How. 198.

29 Atchison v. Morris, 11 Fed. Rep. 582.

30 Nims v. Spurr, 138 Mass. 209.

31 Werthein v. Continental Ry. & Trust Co., 20 Blatchf. C. Ct. 503. 32 Whitten on Manuf. Co. v. Memphis & Ohio River Packet Co., 19 Fed. Rep. 273.

§ 109 g. Rules of practice.-The rules of practice of a United States circuit court govern a cause brought there from a State court, under the Act of 1888, providing that "the cause shall then proceed in the same manner as if it had been originally commenced in said circuit court.1 Whether a new complaint should be filed on removal of a cause from a State court is a question of practice, and not a subject for which error will lie.2 Where a cause is removed from a State court, and the plaintiff amends his complaint, he puts himself within a rule of practice of the

6

circuit court, allowing a defendant, "in all cases," to demand security for costs before answering, though the demand could not have been made in the State court where the action was commenced.3 The circuit court is clothed with no greater power in the premises than the court of the State would have possessed if its jurisdiction had been preserved. The allowance of an amendment to the petition, if allowed at all, is a matter of discretion, and error cannot be assigned thereon. It may allow such amendments to be made to the declaration as would be allowable by the State practice. After jurisdiction obtained, an amendment bringing in new parties will not defeat the jurisdiction. The rule in the State courts as to amendment of pleadings, or the discontinuance of the suit in whole or in part, must control the decision of the Federal court in a case removed from a State court.8 Defendants can avail themselves of the laws which prevail in the State concerning the right of set-off.9 While defendant upon removal may strike out his equitable defense yet if he fails to do so, an admission contained therein binds him to the same extent that it would do in the State court. 10

1 Henning v. Western U. Tel. Co., 40 Fed. Rep. 658.

2 Etna Ins. Co. v. Weide, 76 U. S. 677.

3 Henning v. Western U. Tel. Co., 40 Fed. Rep. 658.

4 East Tennessee V. & G. R. R. Co. v. Southern Tel. Co., 112 U. S. 306. 5 Ayers v. Watson, 137 U. S. 534.

6 West v. Smith, 101 U. S. 263; Wolf v. Cook, 40 Fed. Rep. 432.

7 Stewart v. Dunham, 115 U. S. 61; Ober v. Gallagher, 93 U. S. 199.

8 Nussbaum v. Northern Ins. Co., 40 Fed. Rep. 337.

9 Partridge v. Phoenix Mut. L. Ins. Co., 82 U. S. 573. 10 North Pac. R. Co. v. Paine, 119 U. S. 561.

§ 109 h. Authority of court.—Proceedings had in the State court are not vacated by the removal.1 The removal takes the case in the condition in which it was when the State court was deprived of its jurisdiction, 2 and where an action commenced in a State court in which the distinction between legal and equitable procedure is done away with is removed, it is removed to that side of the court where appropriate relief can be obtained. And for the purposes of jurisdiction the circuit court has power to ascertain the real matter in dispute, and arrange the parties on one side or the other.