[§ 2975 uncertain and equivocal if each was not averred. It is permissible to amend the petition if there is in it a ground for removal.69 Amendment to relate the allegations to the time of the petition has been allowed.70

The statute does not specify how or by whom the petition shall be signed. In a number of cases the signature has been by officers of the corporation or by its attorney with a verification by the officer or the attorney, no question having been made as to the signature because the petition was clearly that of the defendant and so treated in the state court. A signature in the manner of other pleadings would seem to be good practice.71 The requirement that it be "duly verified" does not require verification of anything but facts, it being of no force to verify conclusions of law,72 and such verification may be made by some person for the corporation who knows the facts, e. g., its attorney.73

The petition must be presented to the state court "at the time or at any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff," if the removal is sought on any ground mentioned in section 28 except that of prejudice or local influence.74 The time is that fixed by stat

69 It may be amended "when and only when the petition, as presented to the state court, shows upon its face sufficient ground for removal.' Martin's Adm'r v. Baltimore & O. R. Co., 151 U. S. 673, 38 L. Ed. 311.

70 May be amended to state that petitioner was a corporation at time of filing though time to file it has passed. Roberts v. Pacific & A. Ry. & Nav. Co., 104 Fed. 577.

71 Removal Cases, 100 U. S. 457, 25 L. Ed. 593, where petition not signed at all was held unobjectionable in federal court, no objection having been made in state court and parties having treated it as that of the defendant. Fayette Title & Trust Co. v. Maryland, P. & W. V. Telephone & Telegraph Co., 180 Fed. 928 (signature and verification by agent); Harley v. Home Ins. Co., 125 Fed. 792 (signature by attorney); Weeks v. Billings, 55 N. H. 371 (signature by

president); Shaft v. Phoenix Mut. Life Ins. Co., 67 N. Y. 544, 23 Am. Rep. 138 (verification by officer and signature by attorney); Bell v. Lycoming Ins. Co., 3 Hun (N. Y.) 409 (signature by general agent).

But a signature by attorneys of another state not admitted to practice or for the purposes of the case is bad, it seems. Tomson V. Iowa State Traveling Men's Ass'n, 78 Neb. 400, 110 N. W. 997.

72 Murray v. Southern Bell Telephone & Telegraph Co., 210 Fed. 925; and the same conclusion was reached prior to the enactment of the Judicial Code in a case which assumed for argument that state laws might require verification. See Harley v. Home Ins. Co., 125 Fed. 792.

73 Berry v. Mobile & O. R. Co., 228 Fed. 395.

74 Judicial Code, § 29.

ute or by general rule of practice as the time at which defendant is required to plead to the complaint 75 "any defense whatever," either demurrer or plea in abatement of any kind, or answer to the merits.76 "Rule of court" in this sense has received various interpretations and the cases, as said in a recent opinion, are difficult to reconcile; but a rule obnoxious to a statute fixing time to plead is not meant 77 and no extension by discretionary order in the case will enlarge or extend it, for the "rule" must be one which applies indiscriminately to all suits of a like character.78 Even a stipulation or a consent order will not extend it unless the consent appears to have contemplated that additional privilege.79 The cases are not in harmony as to the effect of extensions, but those cited are recent and contain references to the others and to the elements of real and apparent conflict. They suffice to show the great importance of filing the petition before there is any doubt as to the time.

When based on the ground of prejudice or local influence, it may be "at any time before the trial" of the suit.80 Not only must the petition

75 Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co., 239 Fed. 561.

A default cuts off the time for petition notwithstanding delay in entering judgment for four terms. Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 34 L. Ed. 963, aff'g 88 Tenn. (4 Pickle) 721, 13 S. W. 698.

A second removal can be had after remand if subsequent pleadings disclose a ground not passed on by the former petition and remand, and if timely petition be filed. Fritzlen v. Boatmen's Bank, 212 U. S. 364, 53 L. Ed. 551.

76 Goldey v. Morning News, 156 U. S. 518, 39 L. Ed. 517; Martin's Adm'r v. Baltimore & O. R. Co., 151 U. S. 673, 38 L. Ed. 311.

77 Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co., 239 Fed. 561, distinguishing decisions coming from states where time is fixed by "rule of court" or in other words by rule to plead.

78 An extension in a particular case pursuant to a rule authorizing exten

sions does not extend time for petition. Pilgrim v. Aetna Life Ins. Co., 234 Fed. 958. See also Waverly Stone & Gravel Co. v. Waterloo, C. F. & N. Ry. Co., 239 Fed. 561, disapproving Wilcox & Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn, 60 Fed. 929 (reviewing authorities and distinguishing cases under the Act of 1875).

Must be filed within time fixed by federal statute notwithstanding the state court has extended time to plead. Lewis v. Clyde S. S. Co., 131 N. C. 652, 42 S. E. 969, citing Howard v. Southern Ry. Co., 122 N. C. 944, 29 S. E. 778, where it clearly appears that the filing of the petition originally ineffectual was not legally made until after answer filed within extended time.

79 Williams v. Wilson Fruit Co., 222 Fed. 467.

80 Under the Act of 1875, a petition presented later than the first term at which the action might have been tried and based on prejudice or local influence is too late. School Dist. No. 6 v. Aetna Ins. Co., 66 Me. 370. The time when trial might have

be in time but also the complementary acts of filing bond or security and giving notice.81 The time of filing the petition is not jurisdictional, however, and objection that it was filed too late may be waived.82 All defendants must join in the petition when based on a federal question of a nature not presenting a separable controversy or when based on other facts making the whole suit one for the federal courts, but when a separable controversy or prejudice and local influence is made the ground then the petitioner entitled to remove need not have any other defendant join with him.83

The state of the pleadings and the record at the time of application determines removability,84 and when an issue of fact is made on the right to remove, such question should be left for the federal court, since it has full power to inquire thereof and to remand the case if improperly removed.85 Necessary facts may be proved by

been had is not advanced by a waiver of time which might have been but was not made. Detroit v. Detroit City R. Co., 54 Fed. 1. Hence a petition before actual trial is timely. Id.

Hearing on demurrer is not a trial which cuts off the right. Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65.

A void default against a foreign eorporation cannot be considered as a trial so as to make a petition, filed after setting it aside, too late. Detroit v. Detroit City R. Co., 54 Fed. 1.

Under the law of 1875, the first term after default is set aside is the term for trial (in Michigan) and a petition before that term is in time. Detroit v. Detroit City R. Co., 54 Fed. 1.

81 Tendering security for removal after calling a jury, the petition and affidavit having been in time, is too late. St. Anthony Falls Water-Power Co. v. King Wrought Iron Bridge Co., 23 Minn. 186, 23 Am. Rep. 682.

82 Martin's Adm'r v. Baltimore & O. R. Co., 151 U. S. 673, 38 L. Ed. 311. 83 When the controversy is joint, the defendants must join in the petition even where a federal question sustains jurisdiction. Chicago, R. I.

IV Priv. Corp.-62

& P. R. Co. v. Martin, 178 U. S. 245, 44 L. Ed. 1055.

If solely on the ground mentioned in the first clause of the Removal Act, all must unite. Removal Cases, 100 U. S. 457, 25 L. Ed. 593.

Where removal is based on separableness of the controversy, any one or more of the defendants therein interested without joinder of his co-defendants may petition (construing acts of 1875 and prior). Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514.. See also §§ 2971-2974, supra.

84 Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 55 L. Ed. 521.

85 Texas & P. R. Co. v. Eastin, 214 U. S. 153, 53 L. Ed. 946; Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 53 L. Ed. 765.

An issue of fact arising on the petition is to be tried by the federal court. Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 34 L. Ed. 963, aff'g 88 Tenn. (4 Pickle) 721, 13 S. W. 698. In this case the error of the state court in assuming to try the fact was harmless because the right to remove was lost.

Duty to inquire and remand if improperly removed is fixed by Judicial Code, § 37.

ex parte affidavits, which according to the chancery practice may be on information and belief on a petition presented to the federal court addressed to the ground of prejudice and local influence.86 By reason of the separation of law and equity in the federal courts, and for other reasons, a recasting of the pleadings will often be required in the case. This should be left to the federal court to which the case goes.87 In case the state court denies the right of removal, the petitioner may invoke the power of the district court to assert and protect its jurisdiction by assuming the trial on a record supplied in the manner provided by the statute 88 enjoining further prosecution in the state court, or alternatively the trial may be had in the state court and the matter then reviewed on a writ of error.89 State jurisdiction terminates ipso facto by a timely and sufficient filing of petition for removal.90

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§ 2976. Remand and subsequent removal. If in any removal suit "it shall appear to the satisfaction of the" court that there is no dispute or controversy within its jurisdiction or that parties have been "improperly or collusively made or joined" to make a removable case, the court "shall dismiss the suit or remand it

as justice may require." 91 The recasting of the pleadings necessi

86 May be shown by ex parte affidavits. Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65.

The affidavit of prejudice and local influence may be on information and belief, that being the chancery rule on all interlocutory petitions. Detroit v. Detroit City R. Co., 54 Fed. 1, citing 1 Daniell Chan. Pr. 394, 2 Daniell Chan. Pr. 1509.

87 Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514. See Judicial Code, § 38, which requires that the case be treated as if originally begun in the district court.

88 See Judicial Code, § 35, as to procedure where the clerk refuses to make up the record and deliver same, and section 39, as to certiorari and criminal proceedings to enforce delivery and transmission of the record.

89 When a state court denies removal, defendant may either try the

case reserving his rights by writ or error to the United States Supreme Court, or he may invoke the power of the district court to enjoin further proceedings in the state court. Chesapeake & O. R. Co. v. McCabe, 213 U. S. 207, 53 L. Ed. 765.

90 Removal being accomplished by filing of petition and bond ipso facto devests the jurisdiction of the state court and invests it in the federal court without any formal order, though order is customary; the state court can only pass on the sufficiency of the papers. Accordingly, a temporary injunction not yet effectual because the bond was not yet approved and adjusted by the state court never took effect. Mannington v. Hocking Valley R. Co., 183 Fed. 133.

91 Judicial Code, § 37, which is identical with the prior law except for the word "district" substituted for "circuit" court.

[§ 2976 tated in the federal court may destroy the apparent ground for removal, and if so the case will be remanded.92 On a motion to remand before answer, the bill if vague or ambiguous as to the necessity of joining an individual with the corporation will be carefully scrutinized together with the affidavits, indulging no intendments in its favor, where some indications of a joinder to frustrate removal appear on the record; and, if it is seen that in the development of the case it may appear, though it does not presently appear, that such person is a necessary party, the motion may be denied, reserving the power to remand when the fact develops.93

94

Dismissal rather than remand is called for where the jurisdiction totally fails because the action begun by garnishment was not of a class which could be so begun,9 or where the summons or service is quashed and the federal court has no power to issue an alias summons that will reach defendants.95 A second application for removal after remand may be made if, as to the petitioner, a change in the pleadings or otherwise presents a new ground not previously passed on,96 and the time for such second petition runs from the first knowl

"This was for the protection of the court as well as parties against frauds upon its jurisdiction," and calls on the court to act on its own motion whenever the improper joinder appears. Lehigh Min. & Mfg. Co. v. Kelly, 160 U. S. 327, 40 L. Ed. 444. See also Put-In-Bay Waterworks, Light & Railway Co. v. Ryan, 181 U. S. 409, 45 L. Ed. 927.

92 The recasting of the pleadings should be left for the federal court which, on so doing, will remand if by reframing them the federal jurisdiction be ousted. Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514.

A controversy is not the same as a cause of action. There might be separable causes of action in a single controversy. Hence, remand is proper where petitioning defendants in a tort action stood as virtual cross complainants for equitable relief. Gudger v. Western North Carolina R. Co., 21 Fed. 81.

93 So, where one who was bound by a former injunction was joined without apparent necessity with a

corporation in which he seemed to have no active part though alleged to control its operations. Mayor, etc., of New York v. New Jersey Steam Boat Transp. Co., 24 Fed. 817.

94 Macurda v. Globe Newspaper Co., 165 Fed. 104.

95 Stowe v. Santa Fe Pac. R. Co., 117 Fed. 368.

The fact that the officers of a corporation know of the issuance of process against it does not dispense with the necessity for regular service as provided by statute. Harrell v. Mexico Cattle Co., 73 Tex. 612, 11 S. W. 863.

96 A second application may be made where new pleadings introduce a cause for removal. Fritzlen v. Boatmen's Bank, 212 U. S. 364, 53 L. Ed. 551.

If the time has passed, dismissal involuntarily as against one defendant does not reopen it in favor of the other. Lathrop, Shea & Henwood Co. Interior Construction & Improvement Co., 215 U. S. 246, 54 L. Ed. 177.

V.