[g] Effect of decision of State court refusing removal and proceeding with

cause.

A State court's decision against the right of removal is reviewable on error from the Supreme Court to the highest State court; 13 the remedy is not by prohibition or contempt proceedings.14 Sometimes, however, the circuit court has issued injunction to restrain proceedings in the State court after removal.15 If the petition for removal in the record shows no ground for removal, the State court will be held justified in proceeding with the cause; 16 and on writ of error, the Supreme Court will affirm the judgment of the highest State court.17

But if the record shows that the removal was improperly denied, the Supreme Court will hold that the party attempting removal was not bound to plead further in the State court;18 that if he took the precaution of so doing and failed to make further objections he did not waive his right to insist on the error; 19 that he might file the record in the circuit court after getting a reversal of the State court's action on writ of error; 20 that the proceedings in the State court subsequent to the filing of his petition and bond were void and without jurisdiction; 1 although sanctioned by the highest State tribunals; 2 that the removing party might if the State laws permitted appeal from the order denying removal to the highest State courts.3 The State court's have held, however, that a party who does not perfect his removal by filing transcript may lose the right to object by waiver under some circumstances. On error to a State court where removal has been refused, the Supreme Court will confine its review to that question.5

The fact that both State and Federal courts have a right to pass upon the question of law raised by removal proceedings,6 has lead sometimes to insistence by each upon its own jurisdiction and the cause proceeding to

13 Stone v. South Carolina, 117 U. S. 432, 29 L. ed. 962, 6 Sup. Ct. Rep. 799; Burlington, etc. Ry. v. Dunn, 122 U. S. 515, 30 L. ed. 1159, 7 Sup. Ct. Rep. 1262.

14 Chesapeake, etc. Ry. v. White, 111 U. S. 137, 28 L. ed. 378, 4 Sup. Ct. Rep. 352.

15 French v. Hay, 22 Wall. 252, 22 L. ed. 857; Abeel v. Culberson, 56 Fed. 333; Dietzsch v. Huidekoper, 103 U. S. 498, 26 L. ed. 497.

16 Insurance Co. v. Pechner, 95 U. S. 185, 186, 24 L. ed. 427.

17 Pennsylvania Co. v. Bender, 148 U. S. 260, 37 L. ed. 442, 13 Sup. Ct. Rep. 591.

18 Kanouse v. Martin, 15 How. 209, 14 L. ed. 660.

19 Railroad Co. v. Mississippi, 102 U. S. 141, 26 L. ed. 96; Kern v. Huidekoper, 103 U. S. 493, 26 L. ed. 354; Steamship Co. v. Tugman, 106 U. S.

123, 27 L. ed. 87, 1 Sup. Ct. Rep. 58.

20 Railroad Co. v. Koontz, 104 U. S. 17, 26 L. ed. 643.

1Strauder v. West V. 100 U. S. 312, 25 L. ed. 664; Virginia v. Rives. 100 U. S. 317, 25 L. ed. 667; Davis v. South Carolina, 107 U. S. 601. 27 L. ed. 574, 2 Sup. Ct. Rep. 636.

2 Insurance Co. v. Dunn, 19 Wall. 224, 22 L. ed. 68.

3 Kanouse v. Martin, 15 How. 210, 14 L. ed. 660.

4 See Texas, etc. Ry. v. Davis, 93 Tex. 378, 54 S. W. 381, 55 S. W. 562: Home Ins. Co. v. Curtis, 32 Mich. 403; Roberts v. Chicago R. R. 48 Minn. 521, 51 N. W. 478.

5 Murdock v. Memphis, 20 Wall. 626, 22 L. ed. 429.

6 Walker v. O'Neill, 38 Fed. 374; Springer v. Howes, 69 Fed. 851; Traders' Bank v. Tallmadge, 9 Fed. 362, 20 Blatchf. 39.

judgment and appeal in both tribunals.7 It has been said that the circuit court should accept the decision by the State court that it has jurisdiction and order a remand; 8 at least where the removing party invoked the State court's decision on the point by asking for a removal

order.9

§ 1139. Copy of record and time for filing.

In all causes removable under this act,10 if the term of the circuit court to which the same is removable, then next to the holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court and enter appearance therein; and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf.

Part of § 7, act Mar. 3, 1875, c. 137, 18 Stat. 472, U. S. Comp. Stat. 1901, p. 512.

[a] Necessity for filing transcript in time.

Prior to the act of 1875 there was no statutory exception respecting the time for filing a transcript of the record. It is settled that the circuit court's jurisdiction attaches immediately upon the filing of proper petition and bond, without their acceptance by the State court,11 or order for removal,12 and in advance of the filing of the transcript.13 Failure to file the transcript in due time does not oust the Federal jurisdiction.14 The circuit court has power to permit the transcript to be filed at a day subsequent to that upon which it is due, and will do so for good cause shown,15

7See Removal Cases, 100 U. S. 457, 25 L. ed. 601; Missouri P. Ry. v. Fitzgerald, 160 U. S. 582, 40 L. ed. 536, 16 Sup. Ct. Rep. 389; Home Ins. Co. v. Va. etc. Co. 109 Fed. 689.

8 Beadleston v. Harpending, 32 Fed. 644.

Springer v. Howes, 69 Fed. 851. 10 That is, all removable causes except against revenue officers, etc., under R. S. § 643 (see post, §§ 11451148); or for denial of civil righas under R. S. § 641 (see post, §§ 11491152); or for prejudice or local influence (see post, § 1143). The causes removable under the act are stated in an early chapter, ante, §§ 133-136.

11 Ante, § 1138 [c].

12 Ante, § 1138 [d].

13St. Paul, etc. R. R. v. McLean, 108 U. S. 216. 27 L. ed. 703, 2 Sup. Ct. Rep. 498; Railroad Co. v. Mis

sissippi, 102 U. S. 136, 26 L. ed. 96; Monroe v. Williamson, 81 Fed. 985; Steamship Co. v. Tugman, 106 U. S. 122, 27 L. ed. 87, I Sup. Ct. Rep. 58; St. Paul, etc. R. R. v. McLean, 108 U. S. 216, 27 L. ed. 703, 2 Sup. Ct. Rep. 498.

14 Hamilton v. Fowler, 83 Fed. 321; Torrent v. Martin L. Co. 37 Fed. 728; Rowell v. Hill, 28 Fed. 434; Judge v. Anderson, 19 Fed. 886; Eisenmann v. Delemars, 87 Fed. 250.

15 Baltimore, etc. R. R. v. Koontz, 104 U. S. 16, 26 L. ed. 643; Delbanco v. Singletarry, 40 Fed. 177; Pierce v. Corrigan, 77 Fed. 657: Eisenman v. Delemars, 87 Fed. 250; Lucker v. Phoenix Ins. Co. 66 Fed. 162; Burgunder v. Browne, 59 Fed. 498; and Hall v. Brooks, 14 Fed. 113, 21 Blatchf. 167, where misunderstanding as to commencement of term.

regardless of the motive prompting the removal.16 It will, however, usually impose conditions,17 and refuse to allow filing of a belated transcript where there has been inexcusable laches.18 Its action is discretionary and will not ordinarily be disturbed.19 Liability upon the removal bond arises where the record is not duly filed.20 If the State court has refused to sanction removal, the party is not obliged to file the transcript and proceed in the Federal court, but may first procure a reversal of the State court's action on appeal, and then file his transcript.1 If the record is transmitted to the circuit court in time, the failure to move to docket, or to mark the transcript as filed, are immaterial.2

[b] Filing record before ensuing Federal term.

While the law does not require filing of the record until the ensuing Federal term, it is sometimes necessary to preserve the property in dispute or the rights of a litigant to make application to the judge of the court before that time, and in such a case the plaintiff as well as the defendant may then file a copy of the record. Preliminary injunction may be obtained at that stage of the case; 5 or dissolved; 6 or modified;7 or ex parte orders warranted by the law governing the case may be granted.8 In many cases a plaintiff has been permitted to file the transcript and move to remand, upon giving due notice to the defendant; 9 and remand has been ordered, where the application prior to the beginning of the term, was for a

16 Hall v. Brooks, 14 Fed. 113, 21 Blatchf. 167.

17 Eisenmann v. Delemars, 87 Fed. 250; Pierce v. Corrigan, 77 Fed. 657. 658.

18 Hatcher v. Wadley, 84 Fed. 914; Broadnox v. Eisner, 13 Blatchf. 366, Fed. Cas. No. 1,909; Bright v. R. R. 14 Blatchf. 214, Fed. Cas. No. 1,877, remanding for delay of one term; McGregor v. McGillis, 30 Fed. 390, remanding where record not filed for fifteen months. Some of these cases were prior to the controlling Supreme Court decisions.

19St. Paul R. R. v. McLean, 108 U. S. 217, 27 L. ed. 703, 2 Sup. Ct. Rep. 498; Eisenmann v. Delemars, 87 Fed. 250.

20 Kidder v. Featteau, 2 Fed. 616, 1 McCrary 323, as to damages on bond see Henry v. L. & N. R. R. 91 Ala. 585, 8 South. 343.

1 Railroad Co. v. Koontz, 104 U. S. 17, 26 L. ed. 643. Compare Broadnax v. Eisner, 13 Blatchf. 360, Fed. Cas. No. 1,909, an earlier decision at circuit.

2Glover v. Shepperd, 15 Fed. 834, 11 Biss 572.

4 Hamilton v. Fowler, 83 Fed. 321; Mills v. Newell, 41 Fed. 529; Delbanco v. Singletary, 40 Fed. 177; Consol. T. Co. v. Guarantors Co. 78 Fed. 657; Thompson v. R. R. Co. 60 Fed. 773; Kansas, etc. R. R. v. Lumber Co. 36 Fed. 9.

5 Mahoney M. Co. v. Bennett, 4 Sawy. 291, Fed. Cas. No. 8,968; Commercial Bank v. Corbett, 5 Sawy. 172, Fed. Cas. No. 3,057.

6Texas R. R. v. Rust, 17 Fed. 275. 5 McCrary 348.

Portland v. Oregonian R. R. 6 Fed. 321, 7 Sawy. 122.

25.

8 In re Newark, etc. Co. 110 Fed.

9 Anderson v. Appleton, 32 Fed. 855; State v. Corrigan, 139 Fed. 758; Delbanco v. Singletary, 40 Fed. 177; Mills V. Newell, 41 Fed. 529; Thompson v. Chicago, etc. R. R. 60 Fed. 773; Ryder v. Bateman, 93 Fed. 31; Hartford R. R. v. Montague, 94 Fed. 227 (holding it settled practice in second circuit); Frink v. Blackington, 80 Fed. 306. Contra, Kansas, etc. R. R. v. Interstate L. Co. 36 Fed. 9.

receiver.10 In some districts the rules permit either party as of course to file the record after the removal proceedings are perfected,11 and give notice to the other party.12

But deposition taken prior to the filing of the record at the first of the next term has been excluded where no necessity for action in the interim appeared.13 Any proceedings which would amount to a disposition of the cause on the merits have also been discountenanced prior to the commencement of the term at which the law requires the record to be filed.14

[c] Record and by whom filed.

While it is the clerk's duty to certify to the copy of the record,17 it is the removing party's duty to file the record.18 Detached papers should be certified to.19 If the removing party fails to file the record in time, plaintiff may file it and move to remand the cause.20 So also plaintiff may often, and in some districts always, file the record before the time fixed by law therefor. While it is a copy of the record that the law requires, the original may be filed with the consent of the State court.2 The removal petition is part of the record.3 Journal entries showing the disposition of motions made are also proper parts of the record as are also ancillary proceedings of garnishment in another State.5 If the record is incomplete, diminution may be suggested.6

§ 1140. Penalty for refusal by state court clerk to furnish copy. If the clerk of the State court in which any such cause shall be pending shall refuse to any one or more of the parties or persons applying to remove the same a copy of the record therein, after tender of legal fees for such copy, said clerk so offending shall be deemed guilty of a misdemeanor, and, on conviction thereof in the circuit court of the United States, to which said action, or proceeding was removed, shall be punished by imprisonment not more

10Ryder v. Bateman, 93 Fed. 31. 11See Delbanco v. Singletary, 40 Fed. 177.

12Chiatovich v. Hanchett, 78 Fed.

193.

13 North A. T. Co. v. Howells, 121 Fed. 694.

14 New O. R. R. v. Crescent C. Ry. 5 Fed. 160; In re Barnesville R. R. 4 Fed. 10, 2 McCrary 216.

17 Mayo v. Dockery, 127 N. C. 1, 37 S. E. 62; Martin v. Kanouse, 1 Blatchf. 149, Fed. Cas. No. 9,162.

18 Miller v. Wattier, 24 Fed. 49; Hatcher v. Wadley, 84 Fed. 913.

bett, 5 Sawy. 172, Fed. Cas. No. 3,057. See Clark v. Delaware etc. Co. 11 R. I. 36 as to date of certificate.

20 McGregor v. McGillis, 30 Fed.

390.

1Supra, note [b].

2 Miller v. Wattier, 24 Fed. 49.

3 Randall v. New E. etc. Co. 118 Fed. 782.

4 Probst v. Cowen, 91 Fed. 931. 5 Woodward L. Co. v. Vizard, 144 Fed. 982.

6 Cook v. Whitney, 3 Woods, 715, Fed. Cas. No. 3,166; Dennis v. Alachua Co. 3 Woods, 683, Fed. Cas. No. 3,791; Probst v. Cowan, 91 Fed. 931.

19 Commercial, etc. Bank v. Cor

than one year, or by fine not exceeding $1,000, or both, in the discretion of the court.

Part of 7 act Mar. 3, 1875, c. 137, 18 Stat. 472, U. S. Comp. Stat. 1901, p. 512.

This penal provision was first introduced into the removal laws by the act of 1875, supra. A clerk refusing a demand for a copy of the record may be proceeded against both civilly and criminally.9

§ 1141. Circuit court may certiorari State court for copy of record.

The circuit court to which any cause, shall be removable under this act shall have power to issue a writ of certiorari to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the removal of the same, and enforce said writ according to law.

Part of § 7 act Mar. 3, 1875, c. 137, 18 Stat. 472, U. S. Comp. Stat. 1901, p. 512.

Prior to the act of 1875 no provision was made either for punishing the State court clerk criminally, 10 or for the issuance of certiorari. The court permitted the parties to supply copies of the record and proceedings. 11 It is unnecessary under the above provision to issue certiorari if the record is actually before the circuit court. 12 Nor will it issue if it appears that the cause is not removable; 13 or if it appears that the omission in the record is of a paper withdrawn from the file by stipulation.14 A defect or omission in the transcript may be cured by certiorari,15 as, where a copy of the record is incomplete.16 The object of the writ is to require the State court to certify the copy of the record.17 The clerk's authentication is sufficient without the certificate of the judge; 18 and the authentication may be on separate sheets of paper. 19 A return by the State court that an ap

15 Dennis v. Alachua Co. 3 Woods, bett, 5 Sawy. 172, Fed. Cas. No. 683. Fed. Cas. No. 3.791: Cook v. 3.057.