tion.9 Where a defendant appears generally in the State court without service of process, his time for removal then begins to run;10 but not if he appears specially.11 [k] — extensions of time to plead as enlarging time for removal. Any discretionary extension of time to plead beyond the period when the statute or rule requires answer, demurrer or plea will not enlarge the time for filing removal petition.14 But when a party is entitled to an extension of time under the State statutes or rules of court, as of right, he is not required by statute or rule, to plead or answer before that time, and hence it enlarges his time to file a removal petition.15 A stipulation extending time to plead does not enlarge the time within which the law or court rule requires answer or plea, and therefore not the time for removal.16 Some authorities go further than the foregoing propositions and hold that discretionary orders extending time to plead, based upon a standing rule or statute, extend also the time for removal.17 But it does not seem that a rule or statute providing for the discretionary exercise of power to enlarge the time to plead, a power which all courts possess regardless of statute or rule, is contemplated by Congress in the above provision. It seems safer to assume that Congress had in mind the statute or rule requiring answer or plea and not a statute or rule existing side by side with the requirement permitting the courts to excuse compliance therewith. [1] by amendment of pleadings or change of parties. Amendment of a declaration or complaint which does not state a new 9 See Dancel v. Goodyear S. M. Co. 106 Fed. 551. 10 Chicago v. Hutchinson, 15 Fed. 129; Case v. Olney, 106 Fed. 434. A rule of court in Indiana fixes the time for pleading after the appearance day: See Amsden v. Norwich, etc. Soc. 44 Fed. 515; Daugherty v. W. U. T. Co. 61 Fed. 138; Conner v. Skagit, 45 Fed. 802, 804. 11 Baumgardner v. Bono F. Co. 58 Fed. 2. Fed. 932; Peoples Bank v. Aetna Ins. 15 See Schipper v. Consumer Co. 72 Fed. 803; Rycroft v. Green, 49 Fed. 177. See Wilcox v. Phoenix Ins. Co. 60 Fed. 930, which goes further than the text. 16 Ruby Co. v. Hunter, 60 Fed. 305; Tracy v. Morel, 88 Fed. 802; Fox v. So. Ry. Co. 80 Fed. 945; Price v. Lehigh R. R. 65 Fed. 825; Martin v. Carter, 48 Fed. 596. 14 Railroad Co. v. Daughtry, 138 U. S. 298, 34 L. ed. 963, 11 Sup. Ct. Rep. 306; Pullman P. C. Co. v. Speck, 113 U. S. 88, 28 L. ed. 925, 5 Sup. Ct. 17 Simonson v. Jordan, 30 Fed. 721; Rep. 374: Austin v. Gagan, 39 red. Dwyer v. Peshall, 32 Fed. 497; Hurd 627, 5 L.R.A. 477; Spangler v. Atchi- v. Gere, 38 Fed. 537; Rycroft v. son, etc. R. R. 42 Fed. 306: Dixon Green, 49 Fed. 177; Wilcox v. Phev. W. U. T. Co. 38 Fed. 377; Velie nix Ins. Co. 60 Fed. 932; Peoples' v. Mfg. Co. 40 Fed. 546; Brigham v. Bank v. Aetna Ins. Co. 53 Fed. 161; Thompson Co. 55 Fed. 883; Fidelity Chiatovich v. Hanchett, 78 Fed. 195. Co. v. Newport Co. 70 Fed. 406; Fox Such is the settled rule in the second v. Southern Ry. 80 Fed. 948: Frink circuit: Lord v. Lehigh R. R. 104 Fed. v. Blackington Co. 80 Fed. 306. But 929 and cases cited. see Wilcox v. Phoenix Ins. Co. 60 cause of action will not revive a right of removal; 20 although it may enlarge the time to remove, if it enlarges the time to plead.1 But if a new cause of action is stated by amendment it has been held that defendant may thereafter seek removal.2 Where the amendment by enlarging the amount in dispute or change in substance, first presents a case that is removable, a petition for removal may be filed promptly thereafter.3 So where discontinuance is entered against a party whose presence was a mere device to bar Federal jurisdiction, removal may be had thereafter.4 If a change in parties in effect marks the institution of a new suit, they may have time for removal. The clause requiring petition for removal at or before the time for answer cannot have a literal application where the circumstances giving the right to removal only arise thereafter. If plaintiff joins resident defendants, and, after the statutory time for removal has expired, dismisses such resident defendants, the nonresident defendant is entitled to remove, and plaintiff is estopped to set up the expiration of time therefore.7 [m] - waiver of objection that petition too late. It is settled that the provision fixing the time for filing the petition is not jurisdictional, but is modal and formal.11 It may be waived by failure to make seasonable objection that a petition is filed too late.12 Failure to move for remand is a waiver of the objection; 13 and a party may otherwise 20Kaitel v. Wylie, 38 Fed. 865; Jones V. Mosher, 107 Fed. 561, 46 C. C. A. 471; Painter v. New M. Co. 98 Fed. 544. 1 Martin v. Carter. 48 Fed. 596. See Cramer v. Mack, 12 Fed. 803, 20 Blatchf. 479. 2Jones v. Moşher, 107 Fed. 561, 46 C. C. A. 471; Evans v. Dillingham, 43 Fed. 177. But compare Edrington v. Jefferson, 111 U. S. 775, 28 L. ed. 594, 4 Sup. Ct. Rep. 683; Phoenix Ins. Co. v. Walrath, 117 U. S. 366, 29 L. ed. 924, 6 Sup. Ct. Rep. 768. 3.Jones v. Mosher, 107 Fed. 561, 46 C. C. A. 471; Huskins v. Cincinnati, etc. R. R. 37 Fed. 504, 3 L.R.A. 545; Yarde v. Baltimore R. R. 57 Fed. 913; Cookerly v. Great N. R. R. 70 Fed. 277; Speekart v. German Nat. Bank, 85 Fed. 12; Bailey v. Mosher, 95 Fed. 223, holding first petition became effective on amendment after wards making out a removable case. Fogarty v. S. P. R. R. 121 Fed. 941; Tremper v. Schwabacher, 84 Fed. 416. 4 Powers v. Chesapeake Ry. 169 U. S. 102, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. 5Shirley v. Waco. T. P. 13 Fed. 705, 4 Woods, 411. See American Nat. Bank v. N. B. Co. 70 Fed. 422. 6 Powers v. Chesapeake, etc. Ry. 169 U. S. 100, 42 L. ed. 676. 18 Sup. Ct. Rep. 264; Remington v. Central Pac. R. R. 198 U. S. 95, 49 L. ed. 959, 25 Sup. Ct. Rep. 577; Barber v. Boston, etc. R. Co. 145 Fed. 52. 7 Powers v. Chesapeake & O. Ry. Co. 169 U. S. 92, 42 L. ed. 676, 18 Sup. Ct. Rep. 264; Hukill v. Chesapeake & O. Ry. Co. 65 Fed. 138; Powers v. Chesapeake & O. Ry. Co. 65 Fed. 129; Cookerly v. Great Northern Ry. Co. 70 Fed. 277. 11 Powers v. Chesapeake, etc. Ry. 169 U. S. 99, 100, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. 12 Ayers v. Watson, 113 U. S. 594, 597, 28 L. ed. 1093, 5 Sup. Ct. Rep. 641; Martin v. Baltimore, etc. R. R. 151 U. S. 689, 38 L. ed. 317, 14 Sup. Ct. Rep. 539; Tod v. R. R. Co. 65 Fed. 145, 12 C. C. A. 521; Collins v. Stott, 76 Fed. 613; Baltimore, etc. R. R. v. Ford, 35 Fed. 173. 13Guarantee Co. v. Hanway, 104 Fed. 369. estop himself from the right to object.14 It is too late to object first on appeal.15 The removing party cannot object that his proceedings were too late.16 [n] To what circuit court cause should be taken. The circuit court for the district within the territorial limits of which the suit is pending is the proper court to which to remove a cause; 18 regardless of where it originated.19 In many instances Federal judicial districts are divided into divisions and in such cases there are sometimes special statutory provisions respecting the proper procedure on removal, of which the practitioner should take note.20 § 1137. Removal bond conditioned to enter record, etc. [The party seeeking removal in addition to his removal petition] shall make and file therewith a bond,[a]-[d] with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for their appearing and entering special bail in such suit if special bail was originally requisite therein.[e] Part of 3, act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended Mar. 3, 1887, c. 373, 24 Stat. 552 as corrected Aug. 13, 1888, c. 866, § 1, 25 Stat. 433; U. S. Comp. Stat. 1901, p. 510. [a] History of provision respecting removal bond. This portion of the act of 1875 was not altered by the amendments of 1887 and 1888. It superseded a provision in R. S. § 639, which differed from the above in specifying process, pleadings, depositions, etc., instead of merely requiring a copy of "the record," and in the absence of any provision that the bond cover the costs that might be awarded on remand. R. S. § 639 was based upon earlier acts of 1866, 1867 and 1789.4 14 Powers v. Chesapeake, etc. Ry. 65 Fed. 129. 15 Knight v. Internat. Ry. 61 Fed. 87, 9 C. C. A. 376; Newman v. Schwerin, 61 Fed. 865, 10 C. C. A. 129; Martin v. Baltimore, etc. R. R. 151 U. S. 673, 38 L. ed. 317, 14 Sup. Ct. Rep. 539. 16 Ayers v. Watson, 113 U. S. 599, 28 L. ed. 1093; 5 Sup. Ct. Rep. 641; Connell v. Smiley, 156 U. S. 335, 39 L. ed. 444, 15 Sup. Ct. Rep. 354. 18 Knowlton v. Congress, etc. Co. 13 Blatchf. 170, Fed. Cas. No. 7,902. See Wilcox v. Phoenix Ins. Co. 60 Fed. 933; Hyde v. Victoria L. Co. 125 Fed. 970. 19 Hess v. Reynolds, 113 U. S. 81, 28 L. ed. 927, 5 Sup. Ct. Rep. 377. 20 See ante, § 412. 4See Act Sept. 24 1789, c. 20, § 12, 1 Stat. 79; act July 27, c. 288, 14 Stat. 306; act Mar. 12, 1867, c. 196, 14 Stat. 558. [b] Necessity for bond. As it is filing of proper petition and bond that terminates the State court's jurisdiction, it has been held as necessary to a devestiture of that jurisdiction that the bond filed comply with the statute, as that the petition show a removable cause. Certainly there must be some bond and to that extent it is jurisdictional, yet it would seem that a bond not in statutory form might be rendered sufficient to satisfy jurisdictional requirements by the State court's acceptance thereof. While it is perhaps not indispensable that petition and bond be filed together, neither is effective until supplemented by the other,s and both must be within the prescribed time.9 [c] Form and requisites of bond. While the act prescribes the obligation upon the bond it does not require that it be a penal bond in any particular sum, so that a bond not penal in form, but merely to pay an indefinite amount would apparently be good; 12 and not a ground for remand where the cause was in fact removable and the removal already an accomplished fact.13 The practice, however, seems to be to furnish a bond penal in form with a penalty large enough to cover any costs that might accrue.14 Certainly if the State court accepts a bond with the necessary conditions, as sufficient, whether penal or not, it should not be ground for remanding a removable cause that has otherwise been properly removed.15 But if a bond is penal in form and the amount is left blank there is no liability and no bond.16 The statutory requirement that the removing party "make" the bond is satisfied by offering a good bond to the court and it is not necessary that the party sign it or appear therein as principal.17 No seal upon the bond 5 See ante, § 1136 [d]. 6 McMurdy v. Conn. Ins. Co. 6 Ins. L. J. 666 Fed. Cas. No. 8,903; Torrey v. Grant Wks. 14 Blatchf. 269, Fed. Cas. No. 14,105; Webber v. Bishop, 13 Fed. 49; Sheldrick v. Cockroft, 27 Fed. 579; Shedd v. Fuller, 36 Fed. 609. But some authorities do not deem the bond jurisdictional; Beede v. Cheeney, 5 Fed. 388; Deford v. Mahaffy, 13 Fed. 481; MacNaughton v. R. R. 19 Fed. 883 (although holding the petition jurisdictional and not amendable). The mere filing of petition is not removal: Gregory v. Hartley, 113 U. S. 745, 28 L. ed. 1150, 5 Sup. Ct. Rep. 743; Crehore v. Ohio, etc. Ry. 131 U. S. 244, 33 L. eu. 144, 9 Sup. Ct. Rep. 692. 8 McMurdy v. Conn. Ins. Co. 6 Ins. L. J. 666, Fed. Cas. No. 8,903. Maine v. Gilman, 11 Fed. 214. 9 Austin v. Gagan, 39 Fed. 626, 628, 5 L.R.A. 476. 12 Burdick v. Hale, 7 Biss. 96, Fed. Cas. No. 2,147; Commonwealth v. Louisville B. Co. 42 Fed. 241. 13 Johnson v. F. C. Austin Co. 76 Fed. 616. 14Com. v. Louisville B. Co. 42 Fed. 241; Johnson v. F. C. Austin Co. 76 Fed. 616. 15 See Van Allen v. R. R. Co. 3 Fed. 545, 1 McCrary, 598. See Cooke v. Seligman, 7 Fed. 263, 17 Blatchf. 452; Johnson v. F. C. Austin Co. 76 Fed. 616. 16 Burdick v. Hale, 7 Biss. 96, Fed. Cas. No. 2,147; Austin v. Gagan, 39 Fed. 628, 5 L.R.A. 476. 17 Stevens v. Richardson, 9 Fed. 195, 20 Blatchf. 53; Public G. etc. Co. v. W. U. T. Co. 16 Fed. 289, 11 Biss. 568; Peoples Bank v. Ins. Co. 53 Fed. 161, 163. is required by this statute and the absence of seal cannot invalidate it.18 It is improper for a removing party to appear as surety on the bond. 19 [d] Amendment of bond and waiver of defects. As in the case of petition,2 amendment of the bond is permissible in the Federal court, after the time for removing the cause has expired. The authorities differ as to the nature of the amendments permissible. Those which regard the giving of a bond that complies with statutory requirements, as jurisdictional, will only permit amendment in minor matters, as, to show the proper district.3 Or will disregard any irregularities which they would permit to be amended.4 holding eighteen months delay in objecting to irregularities a waiver. Upon the other hand these authorities will not permit amendment where as given, the bond fails to contain the statutory condition as to costs;5 or fails to contain a penal sum although penal in form. Other authorities take the view that if the petition be regular and the case is removable and has been removed, and the record filed, all defects in the bond are immaterial; and that a failure to condition the bond to cover costs is immaterial and may be amended in the Federal court; 8 or a failure to execute a bond to the proper person.9 Where the State court has accepted a bond and ordered removal, or otherwise recognized the regularity of the removal proceedings so as to preclude the possibility of actual conflict of jurisdiction and decision, there is much to be said in favor of permitting liberality in the amendment of a defective bond.10 [e] Condition specified by the bond. The condition as to payment of costs must be included in every instance; 13 and as to filing the record;14 but the clause respecting appear 18 Loop v. Winters, 115 Fed. 362. 19 Chambers v. McDougal, 42 Fed. 694, 697. 2 Ante, § 1136 [h]. 3 Hodge v. Chicago, etc. Ry. 121 Fed. 48, 57 C. C. A. 388. 4 Dennis v. Alachua Co. 3 Woods, 683, Fed. Cas. No. 3,791. See Chambers v. McDougal, 42 Fed. 694; Hervey v. Ry. Co. 3 Fed. 709, holding eighteen months' delay in objecting to irregularities a waiver. 5 Torrey v. Grant L. Wks. 14 Blatchf. 269, Fed. Cas. No. 14,105; McMurdy v. Life Ins. Co. 4 Wkl. N. Cas. 18, Fed. Cas. No. 8,903; Webber v. Bishop, 13 Fed. 49; Sheldrick v. Cockroft, 27 Fed. 579. 6 Burdick v. Hale, 7 Biss. 96, Fed. Cas. No. 2,147. 7 Beede v. Cheeney, 5 Fed. 388; Deford v. Mahaffy, 13 Fed. 481; Harris v. Delaware R. R. 18 Fed. 833; MacNaughton v. S. P. R. R. 19 Fed. 883; Chambers v. McDougal, 42 Fed. 694. 8 Deford v. Mahaffy, 13 Fed. 481; Coburn v. Cattle Co. 25 Fed. 794. 9 Harris v. Delaware R. R. 18 Fed. 833. 10 See MacNaughton v. S. P. R. R. 19 Fed. 884; Johnson v. F. C. Austin Co. 76 Fed. 616; VanAllen v. P. R. Co. 3 Fed. 545, 1 McCrary, 598; Cooke v. Seligman, 7 Fed. 263, 17 Blatchf. 452. 13 McMurdy v. Conn. Ins. Co. 6 Ins. L. J. 666, Fed. Cas. No. 8,903; Torrey v. Grant L. Wks. 14 Blatchf. 269, Fed. Cas. No. 14,105; Webber v. Bishop 13 Fed. 49; Sheldrick v. Cockroft, 27 Fed. 579. 14 See Clippinger v. Missouri L. Ins. Co. 26 Ohio St. 404. |