decide that the cause was improperly removed, and order the same to be remanded to the State court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.

Last clause of § 2 act Mar. 3, 1875, c. 137, 18 Stat. 470, as amended by act of Mar. 3, 1887, c. 373, § 1, 24 Stat. 552, corrected Aug. 13, 1888, c. 866, § 1, 25 Stat. 433, U. S. Comp. Stat. 1901, p. 510.

The act of 1875 made the remanding order appealable.1 This clause was added in 1887. The other portions of section two of the act of 1875 are given elsewhere.2 Prior to the act of 1875 a remanding order was not appealable because not a final judgment. That act gave the right to appeal such an order, but the amendatory act of 1887 withdrew it. Since then the Supreme Court has no power to review on appeal or error in a direct proceeding for that purpose, an order of a circuit court remanding a cause to a State court,5 whether the suit was begun and the removal had before or after said act took effect. It is not possible to ob tain review of the order of remand on writ of error to the State court after final proceedings therein;7 nor will the Supreme Court issue mandamus after remand to compel the circuit court to reinstate the cause.s Moreover as a remanding order is not a final judgment, it will not entertain appeal under the clause permitting direct appeal of jurisdictional questions; nor appeal from a decree of the circuit court of appeals reversing and directing a remand by the circuit court.10 It results that the remanding order is now absolute in character.

Where the circuit court has refused to remand, its action in that behalf, may be reviewed on appeal from the final judgment or decree in the cause. in the circuit court of appeals or Supreme Court, according as one or the other has the right of review.11 If remand was sought because of mere

1See ante, § 818, to which section the clause permitting appeal was at tached.

2 Ante, $§ 133-136, 1155.

3 Chicago R. R. v. Wiswall, 23 Wall. 507, 23 L. ea. 103; German Nat. Bank v. Speckert, 181 U. S. 407; 45 L. ed. 926, 21 Sup. Ct. Rep. 689.

4 See Morey v. Lockhart, 123 U. S. 56. 31 L. ed. 68. Sup. Ct. Rep. 65.

5 Morey v. Lockhart, 123 U. S. 56, 31 L. ed. 68, 8 Sup. Ct. Rep. 65; Powers v. Chesapeake & Ohio Ry. Co. 169 U. S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264; Gurnee v. Patrick Co. 137 U. S. 141, 34 L. ed. 601, 11 Sup. Ct. Rep. 34; Whelan v. New York R. Co. 35 Fed. 849.

Wilkinson v. Nebraska, 123 U. S. 286, 31 L. ed. 152, 8 Sup. Ct. Rep.

120; Sherman v. Grinnell, 123 U. S 679, 31 L. ed. 278, 8 Sup. Ct. Rep.

260.

7 Whitcomb v. Smithson. 175 U. S. 637, 44 L. ed. 303, 20 Sup. Ct. Rep. 248; Mo. Pac. Railroad v. Fitzgerald, 160 U. S. 556, 48 L. ed. 536, 16 Sup. Ct. Rep. 389.

8 Ex parte Penn. Co. 137 U. S. 451, 34 L. ed. 738, 11 Sup. Ct. Rep. 141. 9Chicago, etc. Ry. v. Roberts, 141 . S. 690, 35 L. ed. 905, 12 Sup. Ct. Rep. 123.

10German Nat. Bank v. Speckart. 181 U. S. 405, 145 L. ed. 926, 21 Sup. Ct. Rep. 689.

11Graves v. Corbin, 132 U. S. 591, 33 L. ed. 462. 10 Sup. Ct. Rep. 195; Cates v. Allen. 149 U. S. 460, 37 L. ed. 804. 13 Sup. Ct. Rep. 883, 977; see German Nat. Bank v. Spec

irregularities in the removal the motion must have been promptly made or its denial will not be reviewed.12

§ 1157. Cause to proceed in circuit court as if originally there instituted.

The circuit court of the United States shall, in all suits removed under the provisions of this act,15 proceed therein as if the suit had been originally commenced in said circuit court,[a]-[b] 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.[c]

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

[a] In general.

A clause of similar purport is contained in the third section of the act.16 There is a similar provision in R. S. § 643 respecting removal of suits against revenue officers.17 As is elsehere shown, the jurisdiction of the circuit court attaches upon the filing of proper petition and bond in the State court, in all cases removable under the act of 187518 except local prejudice cases; 19 and it is proper to apply to the circuit court for relief, if occasion requires, after the filing of petition and bond prior to the time for filing the record.20

[b] Circuit court to proceed according to its own practice.

A removed case must proceed in the circuit court according to its practice and with due respect to the established Federal distinction between procedure at law and in equity. If the pleadings in the State court present a commingling of legal and equitable matters, not permitted by Federal practice, a repleader will be ordered,2 and if necessary the parties will be obliged to proceed in two actions.3 Equitable defenses to actions at law are not admissible. So, if the State court pleadings are

kert, 181 U. S. 405, 45 L. ed. 926, 134, 18 L. ed. 765; Hurt v. Hollings. 21 Sup. Ct. Rep. 689. worth, 100 U. S. 103, 25 L. ed. 569; Wilcox v. Phoenix Ins. Co. 61 Fed. 200.

R. R.

12 Martin V. Baltimore 151 U. S. 673, 38 L. ed. 311, 14 Sup. Ct. Rep. 533; Missouri P. Ry. v. Fitzgerald, 160 U. S. 558, 40 L. ed. 537, 16 Sup. Ct. Rep. 389; Cates v. Allen, 149 U. S. 451, 37 L. ed. 804, 13 Sup. Ct. Rep. 883, 977.

15See ante, §§ 133-136. 16 See ante, § 1138.

17 Ante, § 1145.

18 See ante, § 1138 [b].

19 As to which see ante, § 1143.
20 Ante, § 1139 [b].
1Thompson v. R. R. Co. 6 Wall.

2 Fletcher v. Burt, 126 Fed. 619, 63 C. C. A. 201; Hurt v. Hollingsworth, 100 U. S. 103, 25 L. ed. 569.

3 In re Foley, 76 Fed. 390; LaMothe M. Co. v. National T. Co. 15 Blatchf. 436, Fed. Cas. No. 8,033; see Thorne v. Tonawanda T. Co. 15 Fed. 291.

4Northern P. R. R. v. Paine, 119 U. S. 565, 30 L. ed. 513, 7 Sup. Ct. Rep. 323.

equitable while in Federal practice the action must be docketed upon the law side, the court will order the pleadings reformed according to the practice at law. 5 A cause essentially equitable, according to Federal standards, must go to the equity side of the Federal court and a law case to the law side.7 If the action is really at law no repleader or change will be necessary in the Federal court, since the practice there is assimilated to that of the State courts.10 Where there is a joining of legal and equitable grounds for relief or defense, repleader is necessary in view of the distinction maintained by the Federal courts.11 If the action is really equitable, a reformation of the pleadings is not necessary where the form of the pleading substantially conforms to the Federal practice.12 A stockholder's bill filed in the State court is not governed by the 94th equity rule. 13 In many districts there are rules of court as to docketing of removed cases and the right to replead.

Subsequent pleadings in the Federal court must conform to its practice; 15 and the circuit court's rule as to time for trial will apply.16 A plea filed but not determined in the State court will be adjudged in the Federal court by its own rules. 17 Motion to set aside default made but not decided in the State court will be determined by the circuit court.18 It is usual to move to docket a removed case on the first day of the term, although not required by statute.19

[c] Prior proceedings in the State court to be respected.

There is an express provision regarding the validity and continuing vigor after removal of attachments, bonds, injunctions or other orders granted by the State court.1 Where the State court has before removal, and while its jurisdiction existed, decided a demurrer,2 or motion to set aside

5Coosaw M. Co. v. South Carolina, 144 U. S. 564, 36 L. ed. 537, 12 Sup. Ct. Rep. 689.

6 See ante, § 935.

Thompson V. Railroad Cos. 6 Wall. 138, 18 L. ed. 765; McConnell v. Prov. L. I. Co. 69 Fed. 113, 16 C. C. A. 172; Perkins v. Hendryx, 23 Fed. 419.

9 North, etc. Co. v. Orman, 55 Fed. 18, 5 C. C. A. 22; Bills v. New O. R. R. 13 Blatchf. 227, Fed. Cas. No. 1.409; Dart v. McKinney, 9 Blatchf. 359, Fed. Cas. No. 3,583.

12 Phelps v. Elliott, 26 Fed. 883, 23 Blatchf. 470.

13 Maeder v. Buffalo, etc. Co. 132 Fed. 280.

15 Henning v. W. U. T. Co. 40 Fed. 658; Falls, etc. Co. v. Broderick, 6 Fed. 654, 2 McCrary 489. But a statutory proceeding removed, is governed in the Federal court at law by the special procedure prescribed by the State law: Broadmoor L. Co. v. Curr, 142 Fed. 421.

16 Knoblock v. Southern Ry. 112 Fed. 926.

17 Kelly v. Virginia Ins. Co. 3 Hughes, 449, Fed. Cas. No. 7, 677. 18 Cady v. Assoc. Col. 119 Fed. 420. 19 Glover v. Shepperd, 15 Fed. 834, Biss. 572.

11

1 Ante, § 1153.

2Davis v. St. Louis Ry. 25 Fed. 786; Lookout, etc. R. R. v. Houston, 44 Fed. 449.

1089

service of summons,3 or petition for leave to intervene or other matter,5 such decision is entitled to the same respect in the circuit court as one of its own preliminary rulings. If a receivership or other order or injunction was improvidently made or granted the circuit court will modify or set it aside.6 In that respect the circuit court's power is the same as over one of its own orders. It does not review the State court's action but exercises the ordinary power of rehearing.8 But it will not enforce an order of the State court such as for physical examination of a party where such order is not permissible by the Federal practice.9

Ordinarily the deliberate conclusions of the State court will be adhered to, where there has been no change in the facts or situation of the parties.11 Rulings regarding the sufficiency under the State law of proceedings taken, should be deemed altogether binding.12 While general appearance in the State court waives defects in service on the person so that after removal the removing party cannot in the circuit court move to quash the service13 it is also true that the mere filing of removal petition is not such an appearance as will prevent motion to quash in the circuit court.14

3 Bragdon v. Perkins Co. 82 Fed. 338.

4 Kidder v. Ins. Co. 117 Fed. 997. 5 Cleaver v. Traders Ins. Co. 40 Fed. 711; see Brooks v. Farwell, 4 Fed. 166, 2 McCrary 220, and Sutro v. Simpson, 14 Fed. 370, 4 McCrary 276, holding state ruling not controvertible.

6 Texas Railway v. Rust, 17 Fed. 275; 5 McCrary 348; Sharp v. Whiteside, 19 Fed. 156; Sioux, etc. Ry. v. Chicago Ry. 27 Fed. 770; Bertha, etc. Co. v. Carico, 61 Fed. 132; Board of Comrs. v. Pierce, 90 Fed. 764; Coburn v. Cedar, etc. Co. 25 Fed. 791; Portland v. Oregonian Ry. 6 Fed. 321, 7 Sawy. 122.

7Bryant v. Thompson, 27 Fed. 881. & Denison v. Shawmut M. Co. 124 Fed. 860.

9 Ex parte Fisk, 113 U. S. 725, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724.

11 Bryant v. Thompson, 27 Fed. 881; Phelps v. Canada C. R. R. 19 Fed. 801, 20 Blatchf. 450; Bragdon v. Perkins Co. 82 Fed. 338.

12 Brooks v. Farwell, 4 Fed. 167, 2 McCrary 220; Smith v. Schwed, 6 Fed. 456, 2 McCrary, 441; Leo v. U. P. Ry. 17 Fed. 273.

13 New York Cons. Co. v. Simon, 53 Fed. 5; see Bentlif v. London, etc. Co. 44 Fed. 667, 668, and cases cited.

14 Wabash W. Ry. v. Brow, 164 U. S. 271, 41 L. ed. 431, 17 Sup. Ct. Rep. 126; Goldey v. Morning News, 156 U. S. 518, 39 L. ed. 517, 15 Sup. Ct. Rep. 559; Cady v. Assoc. Col. 119 Fed. 423; Peterson v. Morris, 98 Fed. 48, ante, § 860 [a].

CHAPTER 34.

PATENT, TRADEMARK AND COPYRIGHT PROCEDURE.

§ 1167. Patent Office and District of Columbia court procedure excluded. Bill in equity to enforce issue of patent.

§ 1168.

§ 1169.

§ 1170.

§ 1171.

Relief against interfering patent and effect of judgment.
Injunction against infringer-damages recoverable.
Action on the case for infringement damages.

§ 1172.

§ 1173.

Pleading and proof in actions for infringement.
Jury may be empaneled in equity to try issues of fact.
Suit for infringement where specification of patent too broad.
Recovery by owner of design patent for infringement thereof.
-remedy by existing law not impaired, but owner not to recover

§ 1174.

§ 1175.

§ 1176.

twice.

§ 1177. Federal cognizance of trademark infringement cases, how re

stricted.

Remedies for infringement of trademarks.

§ 1178.

§ 1179.

-when action not maintainable.

§ 1180.

§ 1181.

Remedy of one injured by fraudulent registration of trademark. -existing remedies unimpaired by trademark act.

§ 1182. Injunction in copyright cases.

§ 1183.

Injunction against sale, etc., of articles with false copyright

notice.

§ 1184. against infringement of dramatic or unissued composition

procedure.

§ 1185. Effect of plea of general issue in copyright infringement cases.

§ 1167. Patent Office and District of Columbia court procedure

excluded.

It is not within the scope of this work to include the statutory provisions respecting the procedure to be followed in obtaining patents, or registering trademarks1 in the Patent Office, nor in obtaining copyright from the Librarian of Congress.2 So also the provisions for appeals to the court of appeals of the District of Co

1See R. S. $$ 4883-4910. U. S. Comp. Stat. 1901, pp. 3381-3391.

2See act Mar. 3. 1881. c. 138. 21 Stat. 502. U. S. Comp. Stat. 1901, p. 3401 et seq.