The history of a subsequent case was as follows:- Ou August 24, 1899, plaintiff commenced suit in the District Court of Salt Lake County, Utah. On September 2, 1899, the defendant filed a petition and bond for removal to the Circuit Court of the United States for the District of Utah. That petition alleged "that the controversy in said suit is between citizens of different States, and that your petitioner, the defendant in the above entitled suit, was at the time of the commencement of the suit and still is a resident and citizen of the City of Denver, in the State of Colorado." On December 30, 1899, the plaintiffs moved to remand on the ground that the diverse citizenship of the parties at the time of the commencement of the suit and at the time of its removal from the jurisdiction of the State Court did not appear upon the record. On January 2, 1900, the defendant gave notice of a motion to amend its petition for removal by adding this allegation:- "That the plaintiffs, and each of them, were, at the time of the commencement of this suit, and still are, citizens and residents of the City of Salt Lake and State of Utah." The Supreme Court held that the amendment could be made, it having been offered before any action had been had in the Federal Court on the merits of the case. Upon the actual facts the appellee was entitled to remove, and nothing to prejudice the rights of the plaintiff had been done before the petition for removal was perfected.2

Nevertheless, it is exceedingly important for the defendant to make sure that his petition as first filed is right and needs. no amending. A plaintiff may notice a defect in the petition and say nothing about it. He may let the case be tried on its merits. If the judgment is against him he may even then secure its reversal and a remanding of the case to the State Court. This danger is perhaps not so great as it once was. Prior to 1904, when the Kinney vs. Columbia Savings and Loan Association, above referred to, was decided, the Supreme Court, without looking into the merits, had fre

Kinney vs. Columbia Svgs. & Loan Asso., 191 U. S. 78.

quently reversed judgments below and sent cases back with instructions to remand to the State Courts. All that the Kinney case decided was that when leave to amend is asked before any action has been taken on the merits it may be granted.

343. Determination of All Disputed Questions of Fact as to the Right to Remove is With the Federal Court. The State Court is bound to accept as true the averments of fact contained in the petition for removal. If the plaintiff would dispute them he must do so in the Federal and not in State Court.1

344. Defendant May Remove Without Consent of State Court.-A defendant, who has been improperly denied the removal for which he has asked, need not await a judgment or decree against him. He may file a transcript of the record in the proper United States District Court and may then ask it to enjoin further proceedings in the State tribunal.

Section 39 of the Judicial Code makes elaborate provision to insure that a defendant who is entitled to remove his case shall not be prevented from so doing. The clerk of a State Court who will not, upon tender of proper fees, make out a transcript of the record, commits an offense against the United States, and upon conviction may be fined not more than $1,000 or imprisoned not more than a year, or both. The District Court to which the case is removable is empowered to issue a writ of certiorari to the State Court commanding the latter to make a return of the record.

By section 35, if the clerk refuses or neglects, upon payment or tender of the legal fees, to furnish the transcript, the United States District Court may direct such record to be supplied by affidavit or otherwise, as the circumstances of the case may require and allow.

1C. & O. Ry. Co. vs. Cockrell, 232 U. S. 146.

345. Federal Court May Enjoin Plaintiff From Proceeding in State Court.-When a defendant has presented his petition for removal and the State Court has improperly refused it and he has caused a transcript of the record to be filed in the Federal Court, the latter will at his request enjoin the plaintiff from further prosecuting his action in the former.1

346. When Petition for Removal Must Be Filed.In all cases covered by section 28, except those in which the removal is asked for on the ground of prejudice or local influence, the defendant must make and file his petition for removal in the State Court at or before he is required by the laws of the State or the rules of the Court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff.

347. Required to Answer or to Plead Means Earliest Time Defendant is Required to Make Any Kind of Plea or Answer.-Under the rules of practice prevailing in most of the States, a defendant if he wishes to plead limitations or in abatement must do so at a somewhat earlier period than that at which he is required to plead to the merits. A Maryland corporation was sued in a West Virginia Court by a citizen of that State. If it had desired to plead to the jurisdiction or in abatement it would have had to do so at the April rule day. After that date, but while it still might plead to the merits, it filed its petition for removal. The Supreme Court held that under the language of the Statute the petition for removal must be filed at or before the time the defendant is required to make any defense whatever in the State Court, so that if the case be removed, the validity of any or all defenses may be tried and determined in the Federal tribunal. It followed that the defendant's petition had not been filed in time.1

1 Madisonville Traction Co. vs. Saint Bernard Mining Co., 196 U. S. 239; Donovan vs. Wells, Fargo & Co., 169 Fed. 363.

1 Martin vs. B. & O. R. R. Co., 151 U. S. 684.

348. Time in Which Removal Must Be Sought Does Not Begin to Run Until Suit Becomes for the First Time Removable.-A plaintiff may in his declaration claim a sum not exceeding $3,000. He may bring his action against two defendants, only one of whom is a citizen of another State. He may not base his claim to recover upon any Federal right. Later, and after the time at which the defendant is required to plead, and after the non-resident defendant has in fact pleaded, plaintiff may amend by increasing his claim for damages to upwards of $3,000, by discontinuing as to the resident defendant, or by setting up a Federal right. If the declaration or bill had originally been framed in its amended form the non-resident defendant would have been entitled to remove the case to the Federal Court. As it was in fact first drawn, the case made was a non-removable one. Does the defendant lose his right to have the case sent to the Federal Court, because he did not ask to have it removed before the time at which he was required to plead to or answer the original declaration or complaint? If he does, a plaintiff has always at his command an easy way of preventing the possibility of removal. The Supreme Court, in accordance with obvious justice and common sense, has held that a defendant's petition for removal is filed in time if it be filed so soon as the cause assumes a removable form.1

349. When Petition to Remove on Ground of Prejudice or Local Influence Must Be Filed.-Section 29 says that the petition to remove on the ground of prejudice and local influence may be filed at any time before trial. The defendant therefore may ask for a removal on this ground at a later date than he could on others. He must, however, make the application, as the statute directs, before trial, and that means before the first trial of the cause. He cannot apply for a removal after the case has been once tried, although the verdict and judgment has been set aside or even though the jury failed to arrive at a verdict at all.1

1 Powers vs. Chesapeake & Ohio R. Co., 169 U. S. 92.

1 Fisk vs. Henarie, 142 U. S. 459.

350. Right to Object That Petition for Removal was Not Made in Time May Be Waived. It is, however, clearly settled law that the time of the removal is not a jurisdictional matter in the sense that the parties cannot waive it. They do waive the right to object to the removal on that ground if they go to trial in the Federal Court without raising the objection.

In the case of Martin vs. B. & O. R. R. Co.,1 the Court held that the State Court could have refused to order the removal, and that, after it had done so, a motion to remand promptly made in the Federal Court would have been granted. Nevertheless, it went on to say, that no objection to the removal had been made in the State Court and no motion to remand in the Federal. It then added:

"The time of filing a petition for the removal of a case from a State court into the Circuit court of the United States for trial is not a fact in its nature essential to the jurisdiction of the national court under the Constitution of the United States, like the fundamental condition of a controversy between citizens of different States."*** It "is more analogous to the direction that a civil suit within the original jurisdiction of the Circuit Court of the United States shall be brought in a certain district, a non-compliance with which is waived by a defendant who does not seasonably object that the suit is brought in the wrong district."

It was held that by proceeding to the trial of the case the plaintiff had waived the objection.

351. No Appeal From Order of District Court Remanding Case to State Court.-By section 28 of the Judicial Code it is provided that if the District Court shall decide that a cause has been improperly removed into it from the State Court, and order the same to be remanded, such remand shall be immediately carried into execution and no appeal or writ of error from the remanding decision shall be allowed.

1151 U. S. 684.