are not effectual to prevent a removal. Ellerman v. New Orleans, M. & T. R. Co. (C. C. 1875) Fed. Cas. No. 4,382.

Since an order of the state trial court removing a cause to the federal court on the ground of diversity of citizenship is not reviewable by the state Supreme Court by appeal or writ of error, it may be reviewed on certiorari; the error, if any, appearing on the face of the record. State ex rel. Iba v. Mosman (1910) 133 S. W. 38, 231 Mo. 474.

Under Civ. Code Ga. § 5526, providing that a writ of error will lie to the supreme court whenever "the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final" judgment, a refusal to allow the removal of a cause to the federal court is reviewable. Western Union Tel. Co. v. Griffith (1898) 30 S. E. 420, 104 Ga. 56.

An order denying an application for removal of a cause to the federal court is not appealable. State ex rel. Coons v. Judge of Thirteenth Judicial Dist. (1871) 23 La. Ann. 29, 8 Am. Rep. 583.

Code Miss. § 34, authorizing the chancellor to grant an appeal from any interlocutory order, whereby money is required to be paid or the possession of property changed, or where the chancellor thinks it proper to state the principles in the case or to avoid delay or expense, does not authorize an appeal from an interlocutory order refusing to remove a cause to the federal courts. Vicksburg Water Works Co. v. City of Vicksburg (1902) 31 So. 1, 79 Miss. 510.

From an order denying an application to remove a cause to the federal court an appeal presently lies. Pruett v. Charlotte Power Co. (1914) 83 S. E. $30, 167 N. C. 598.

Where a motion was made in the superior court for removal to the United States court, which was denied by the court, and after the report of the committee finding the facts the case was reserved for the advice of this court "on the questions arising on the report, and also on the question what decree should be passed on the facts reported," the court will refuse to consider the question whether the cause ought not to have been removed to the United States court. Occum Co. v. A. & W. Sprague Mfg. Co. (1868) 35 Conn. 496.

Where an order has been made by a state court for the removal of a cause to the United States court, and an appeal has been taken from that order to the supreme court, and the proper steps have been taken to stay proceedings as in other cases of appeal, further proceedings on the order or judgment for removal are at once suspended. Burson v. National Park Bank (1872) 40 Ind. 173, 13 Am. Rep. 285.

A nonresident defendant, joined with residents in an action which on the face of the petition was not removable to the federal court, petitioned for its removal, but stated no ground in the petition for such removal. The court, in its orders, did not pass upon the petition for removal, but merely approved and accepted the bond, and permitted plaintiff's answer to the petition for removal to be filed. Defendant evidently assumed that the case was ipso facto removed to the federal court, without any order by the state court, and plaintiff also concluded that that forum must pass upon the propriety of the removal. Held, that there was no order of the state court removing the cause to the federal court, from which plaintiff could or should have appealed in order to preserve his rights to a trial in the Pierce's state court. Adm'r v. Illinois Cent. R. Co. (1905) 86 S. W. 703, 27 Ky. Law Rep. 801.

The state court is the judge of the sufficiency of the sureties offered on an application to remove; and the supreme court will not interfere, except in very strong cases of the improper exercise of that discretion. Fitz's Syndic v. Hayden (La. 1826) 4 Mart. (N. S.) 653.

Where on suggestion of diminution of record certificates of the clerk of the United States court were produced to show that before judgment was rendered the case had been removed to that court, the question of removal could only be reviewed on a bill of exceptions, showing the course taken to obtain it, and the action of the district court thereon. Singleton v. Boyle

(1876) 4 Neb. 414.

Where the court of common pleas refuses to remove a proper case to the federal courts, on appeal to the district court from the judgment, a motion for removal should be sustained. Hadley v. Dunlap (1859) 10 Ohio St. 1.

The action of the trial court in refusing a motion to remove the case to a federal court will not be reviewed on appeal, where, before trial, the federal court had entered an order remanding the case. Talbott & Sons v. Planters' Oil Co. (1895) 12 Tex. Civ. App. 49, 33 S. W. 745.

Where a state court erroneously permitted certain defendants to file petitions for removal, and approved bonds given thereon, and such defendants took a transcript to the federal court, and plaintiffs appeared there, and moved to have the cause remanded, and subsequently on their motion the cause was dismissed without prejudice, plaintiffs, by their conduct, lost their right to have the state court's action corrected. Stephenson's Adm'r v. Illinois Cent. R. Co. (1903) 75 S. W. 260, 25 Ky. Law Rep. 442.

III. Review by federal trial court.The federal circuit court cannot review the decision of the state court on ques

tions arising under the petition for removal of a cause from the state to the federal court. The remedy is by appeal to the supreme court of the state, and thence by writ of error to the supreme court of the United States. Hough v. Western Transp. Co. (C. C. 1864) Fed. Cas. No. 6,724.

Where, on the filing of a petition, and bond for removal of an action from a state court to the United States circuit court on the ground of diversity of citizenship, the judge of the state court makes an order for such removal, the federal court has no right to review the order, and decide whether the judge had a right to sign it, especially as no order was necessary, the cause Leing removed ipso facto on the petition and bond being filed. Ashe v. Union Cent. Life Ins. Co., (C. C. 1902) 115 Fed. 234.

112. Review by United States supreme court.-Where, after petition for removal and bond is filed, the state court goes to trial, and the case goes to judgment and is carried to the highest court in the state, and it affirms the judgment, a writ of error lies to the supreme court of the United States under the Judiciary Act, § 25 (1 Stat. 85). Kanouse v. Martin (1852) 14 How. 23, 14 L. Ed. 310; Id. (1853) 15 How. 198, 14 L. Ed. 660; Oakley v. Goodnow (1886) 118 U. S. 43, 6 Sup. Ct. 944, 30 L. Ed. 61; State ex rel. Jumel v. Johnson (1877) 29 La. Ann. 399; Schwyhart v. Barrett (Mo. 1910) 130 S. W. 388.

Where a petition for removal was in accordance with the practice of the state reserved for the decision of the supreme court, and the latter dismissed the petition and remanded the cause to the inferior court for further proceedings, according to law, this court has no jurisdiction. Kim' all V. Evans (1876) 93 U. S. 320, 23 L. Ed. 920.

Where a petition and bond for the removal of a cause to the federal court is duly filed, and on the record made defendant is entitled to removal, its right is preserved, not only for review in the state court, but also in the Supreme Court of the United States. Shohoney v. Quincy, O. & K. C. Ry. Co. (1909) 122 S. W. 1025, 223 Mo. 649.

113. Mandamus to compel transfer of cause. A state court can grant mandamus to compel an inferior state court to remove a cause, defendant being entitled to such removal. Hopper v. Kalkman (1861) 17 Cal. 517; Kennedy v. Woolfolk (1809) 1 Tenn. (1 Overt.) 453; Brown v. Crippin (Va. 1809) 4 Hen. & M. 173. CONTRA, State v. Curler (1868) 4 Nev. 445; People v. Judges of New York Common Pleas (N. Y. 1846) 2 Denio, 197.

No mandamus from a court of the United States to a state court is necessary to enforce affirmative action by a state court to allow a cause to be removed in an ordinary case of removal of a

cause before judgment; and therefore a court of the United States has no jurisdiction to issue such mandamus. In re Cromie (C. C. 1869) Fed. Cas. No. 3,405; Fisk v. Union Pac. R. Co. Id 4,827. CONTRA, Spraggins v. Humphries County Court (C. C. 1812) Fed. Cas. No. 13,246, 3 Tenn. (Cooke) 160.

Mandamus will issue out of the Supreme Court directing a district judge to grant an appeal from an order removing a cause to the federal Circuit Court, if the cause is otherwise appealable. State ex rel. Coons v. Judge of Thirteenth Judicial Dist. (1871) 23 La. Ann. 29, 8 Am. Rep. 583.

Application for mandamus to compel the circuit judge to set aside an order transferring a cause to the federal court will be denied if the record fails to show that application was made to the judge himself to vacate the order. Le Roux v. Bay Circuit Judge (1881) 45 Mich. 416, 8 N. W. 100.

(B) Transfer of jurisdiction

114. Essentials to transfer of jurisdiction. Upon the filing in the state court, in due time, of a sufficient petition and bond, in a cause removable thereby, the jurisdiction of the state court absolutely ceases, and that of the circuit court of the United States immediately attaches, regardless of any action thereonly the state court; and any further proceeding in the state court is coram non judice, unless its jurisdiction is actually restored. Kern v. Huidekoper (1880) 103 U. S. 485, 490, 26 L. Ed. 354; Baltimore & O. R. Co. v. Koontz (1881) 104 U. S. 5, 26 L. Ed. 643; Nat. Steamship Co. v. Tugman (1882) 1 Sup. Ct. 58, 60, 106 U. S. 118, 27 L. Ed. 87; Manning v. Amy (1891) 11 Sup. Ct. 707, 708, 140 U. S. 137, 35 L. Ed. 386; Madisonville Traction Co. v. St. Bernard Min. Co. (1905) 25 Sup. Ct. 251, 253, 196 U. S. 239, 49 L. Ed. 462; North American Transportation & Trading Co. v. Howells (1903) 121 Fed. 694, 58 C. C. A. 442; Boatmen's Bank of St. Louis v. Fritzlen (1905) 135 Fed. 650, 68 C. C. A. 288 (reversing judgment and order, Weldon v. Fritzlen [C. C. 1904] 128 Fed. 608); McAlister v. Chesapeake & O. Ry. Co. (1907) 157 Fed. 740, 85 C. C. A. 316, 13 Ann. Cas. 1068; Flint v. Coffin (1910) 176 Fed. 872, 100 C. C. A. 342; Mannington v. Hocking Valley Ry. Co. (C. C. A. 1910) 183 Fed. 133; Dunham v. Baird (C. C. 1875) Fed. Cas. No. 4,147; Ellerman v. New Orleans, M. & T. R. Co., Id. 4,382; Osgood v. Chicago, D. & V. R. Co., Id. 10,604; Cobb v. Globe Mut. Life Ins. Co. (C. C. 1877) Fed. Cas. No. 2,921; Connor v. Scott Id. 3,119; Arthur v. New England Mut. Life Ins. Co. (C. C. 1879) Fed. Cas. No. 565; Second Nat. Bank v. New York Silk Mfg. Co. (C. C. 1882) Fed. Cas. No. 12,601a;

render its jurisdiction, and may proceed as if no application for removal had been made. Madisonville Traction Co. v. St. Bernard Min. Co. (1905) 25 Sup. Ct. 251, 253, 196 U. S. 239, 49 L. Ed. 462; Keeney v. Roberts (C. C. 1886) 39 Fed. 629, 630; Miller v. Soule (D. C. 1915) 221 Fed. 493; Darton v. Sperry (1899) 41 A. 1052, 71 Conn. 339; State v. American Surety Co. of New York (1915) 145 Pac. 1097, 26 Idaho, 652; Williamson v. First Nat. Bank of Newport (1888) 10 Ky. Law Rep. (abstract) 283; Silva v. First Nat. Bank, Id. 365; Hickman v. Missouri, K. & T. Ry. Co. (1899) 151 Mo. 644, 52 S. W. 351 (reversed on other grounds Missouri, K. & T. Ry. Co. v. Hickman [1901] 22 Sup. Ct. 18, 183 U. S. 53, 46 L. Ed. 78); Debnam v. Southern Bell Tel. Co. (1900) 36 S. E. 269, 126 N. C. 831, 65 L. R. A. 915; North Carolina Corp. Commission v. Southern Ry. Co. (1909) 66 S. E. 427, 151 N. C. 447; Higson v. North River Ins. Co. (1910) 68 S. E. 920, 153 N. C. 35. And the petition and bond must be sufficient, and filed within the statutory time. Johnson V. Butte Alex Scott Copper Co. (D. C. 1914) 213 Fed. 910; Silva v. First Nat. Bank (1888) 10 Ky. Law Rep. (abstract) 365; Smith v. Harris Granite Quarries Co. (1913) 80 S. E. 388, 164 N. C. 338.

Though defendant's petition and bond for removal to the federal court are filed in apt time, and based upon proper grounds, they do not effect such removal, when at the time he moves the state court for an order of removal he reserves his right to remove pending the determination of a motion to dismiss and a plea in abatement theretofore filed. Manning v. Amy (1891) 140 U. S. 137, 11 Sup. Ct. 707, 35 L. Ed. 386, affirming Amy v. Manning (1887) 144 Mass. 153, 10 N. E. 737.

If defendant does all that is necessary to secure a removal, he can, whether the state court makes an order of removal or not, perfect the removal by entering in the federal court, at the proper time, copies of the proper papers, and his appearance, and special bail, if necessary; and when that is done, the cause will proceed in the federal court. Hatch v. Chicago, R. I. & P. R. Co. (C. C. 1868) Fed. Cas. No. 6,204; Fisk v. Union Pac. R. Co. (C. C. 1869) Fed. Cas. No. 4,827; Bell v. Dix (1872) 49 N. Y. 232.

Where a proper bond and petition have been filed in the state court, the omission to ask that court to act on the petition is no ground for remanding the cause, especially where no term of the state court intervenes between the filing of the petition and the motion to remand, and the judge of that court has refused to consider the petition until the court is in session. Brown v. Murray Nelson & Co. (C. C. 1890) 43 Fed. 614.

On the filing of a proper petition for

removal from the state court, in due time, the cause is removed eo instanti, and an error of the clerk of the state court in disposing of the petition is not material. Wills v. Baltimore & O. R. Co. (C. C. 1895) 65 Fed. 532.

The action of the state court in refusing a removal cannot affect the federal court, nor can the action of the federal court in refusing to remove affect the state court, and the trial in both courts can proceed. Mecke v. Valley Town Mineral Co. (C. C. 1898) 89 Fed. 114, 115.

In the case of the removal of a cause from a state to a federal court, the approval, by the state court, of the bond of removal of a cause, is not necessary to the jurisdiction of the federal court. Dennis V. Alachua County (C. C. 1877) Fed. Cas. No. 3,791.

Defendants not served or appearing in the state court when an order of removal was made are not affected by it; as to them the cause is still pending in that court and must be removed by its order on the petition of such defendants before they can come into the federal courts. Field v. Lownsdale (C. C. 1867) Fed. Cas. No. 4,769.

The jurisdiction of the federal court is not lost for want of an averment of citizenship in the bill of complaint originally filed, or in the amendments thereto, which were made in the circuit court. Briges v. Sperry (1877) 95 U. S. 401, 24 L. Ed. 390.

The jurisdiction of the federal court over a removed cause is not affected by the subsequent death of the defendant, and the execution of the appeal bond by his executor. Garrett v. Bonner (1878) 30 La. Ann. 1305.

The removal invests the federal court with jurisdiction of the case with all its incidents, including the taxation of costs. Chastain v. Missouri, K. & T. Ry. Co. (1911) 133 S. W. 853, 152 Mo. App. 478.

115. Duty of state court to transfer cause. A state court is not bound to surrender its jurisdiction until a case is made which, on the face of the record, shows that the petitioner is entitled to such a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal. Gregory v. Hartley (1885) 113 U. S. 742, 5 Sup. Ct. 743, 28 L. Ed. 1150; Stone v. South Carolina (1886) 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Missouri, K. & T. Ry. Co. v. Chappell (D. C. 1913) 206 Fed. 688; Ex parte Grimball (1878) 61 Ala. 598; Ex parte Mobile & O. R. Co. (1879) 63 Ala. 349; McWhinney v. Brinker (1878) 64 Ind. 360; Wilson v. Big Joe Block Coal Co. (1907) 113 N. W. 348, 135 Iowa, 531; Bacon v. Iowa Cent. Ry. Co. (1912) 137 N. W. 1011; Chappell Chemical & Fertilizer

Co. v. Sulphur Mines Co. (1897) 36 A. 712, 85 Md. 684; Long v. Quinn Bros. (1913) 102 N. E. 348, 215 Mass. 85; Schwyhart v. Barrett (1910) 130 S. W. 388, 145 Mo. App. 332; Blair v. West Point Mfg. Co. (1878) 7 Neb. 146; National Docks & N. J. Junction Connecting Ry. Co. v. Pennsylvania R. Co. (1889) 52 N. J. Eq. (7 Dick.) 58, 28 Atl. 71; Hurst v. Southern R. Co. (1913) 78 S. E. 434, 162 N. C. 368; Stuart v. Bank of Staplehurst (1899) 78 N. W. 298, 57 Neb. 569; Pruitt v. Charlotte Power Co. (1914) 81 S. E. 624, 165 N. C. 416; Lloyd v. Southern Ry. Co. (1914) 81 S. E. 1003, 166 N. C. 24; Baltimore & O. R. Co. v. Pittsburg, W. & K. R. Co. (1881) 17 W. Va. 812.

But, if a petition for removal is seasonably and formally made, and shows a right to remove, and the requisite bond filed, the state court has no power to do otherwise than to make the necessary order for removal and can proceed no further with the suit. Gordon v. Longest (1842) 16 Pet. 97, 104, 10 L. Ed. 900; Donovan v. Wells Fargo & Co. (1909) 169 Fed. 363, 94 C. C. A. 609, 22 L. R. A. (N. S.) 1250; St. Louis & S. F. R. Co. v. Kitchen (Ark. 1911) 136 S. W. 970; Terre Haute & I. R. Co. v. Abend (1881) 9 Ill. App. 304; Western Union Telegraph Co. v. Horack, Id. 309; Indianapolis, B. & W. Ry. Co. v. Risley (1875) 50 Ind. 60; Stoker v. Leavenworth (1836) 7 La. 390; Hyder v. Southern Ry. Co. (1914) 83 S. E. 689, 167 N. C. 584.

Where all the requisites of the act of congress relative to removal of causes from the state to the federal court have been complied with, the state court has no right to deny the removal. Gordon v. Longest (1842) 41 U. S. (16 Pet.) 97, 10 L. Ed. 900; Matthews v. Lyall (C. C. 1853) Fed. Cas. No. 9,285; Hatch v. Chicago, R. I. & P. R. Co. (C. C. 1868) Fed. Cas. No. 6,204; Akerly v. Vilas (C. C. 1869) Fed. Cas. No. 119; Duff v. Hildreth (1903) 67 N. E. 356, 183 Mass. 440; Bell v. Dix (1872) 49 N. Y. 232; O'Malie v. Home Ins. Co. (Pa. 1875) 4 Luz. Leg. Reg. 63; James v. Thurston (1860) 6 R. I. 428; Williams v. Adkins (1869) 46 Tenn. (6 Coldw.) 615.

The right to remove a cause from a state to a federal court under all the acts of congress providing for removals is a right conferred directly by the act of congress, and is not dependent on the volition, or action, or nonaction of a state court. Fisk v. Union Pac. R. Co. (C. C. 1869) Fed. Cas. No. 4,827.

No action of the state court can confer or take away the right to remove a cause from a state to a federal court; the party seeking a removal is to do all that is necessary to secure a removal. Whether the state court makes an order for removal or not, he can perfect the removal by entering in this court, at the proper time, copies of the

proper papers, and his appearance and special bail, if necessary. Clippinger v. Missouri Val. Life Ins. Co. (C. C. 1876) Fed. Cas. No. 2,901.

Where no copy of the petition on which an order of removal to a federal court is made, is presented to the trial court, and the order itself fails to show any ground therefor, the district court is not required to surrender its jurisdiction, but may proceed to try the cause. Anglo-American Provision Co. v. Evans (1892) 34 Neb. 44, 51 N. W. 310.

116. Removal on consent.-An action pending in a state court cannot be removed to the circuit court by written stipulation, where there is nothing in the latter or the record to show that, by reason of the subject-matter, or the character of the parties, the latter court can take cognizance of it. People's Bank v. Calhoun (1880) 102 U. S. 256, 26 L. Ed. 101; Katalla Co. v. Rones (1911) 186 Fed. 30, 108 C. C. A. 132, affirming judgment (C. C. 1910) Rones v. Katalla Co., 182 Fed. 946; Kingsbury v. Kingsbury (C. C. 1871) Fed. Cas. No. 7,817; Richardson v. Packwood (La. 1823) 1 Mart. (N. S.) 299.

A cause cannot be removed from a state court by the entry of a consent agreement therefor in a circuit court of the United States, without the filing in the state court of the petition and bond required by the removal act. First Nat. Bank v. Prager (1899) 91 Fed. 689, 34 C. C. A. 51.

A minor is incapable of consenting to a removal either by his guardian ad litem or any other person. Kingsbury v. Kingsbury (C. C. 1871) Fed. Cas. No. 7,817.

117. Proceedings in state court pending proceedings for removal.-The affidavit for removal and bond having been filed in term time, but during a temporary recess of the state court, and the record not having been filed in the federal court, the state court, on a proper case being shown, had jurisdiction to appoint a receiver. First Nat. Bank of Manhattan v. King Wrought Iron Bridge Co. (D. C. 1875) Fed. Cas. No. 4.803.

While a petition filed by defendant for the removal of a cause from a state to the United States court pursuant to the act of 1789 is pending and undetermined in the state court, it is irregular to enter the default of defendant, and, if entered, a motion to set it aside should be granted. Mattoon v. Hinkley (1864) 33 Ill. 208.

No stay of proceedings in a cause in a state court exists under the federal removal statute, unless the removal proceedings are valid, and divest the state court of further jurisdiction and vest it in the federal court. Tierney v. Helvetia Swiss Fire Ins. Co. (1908) 110 N. Y. S. 613, 126 App. Div. 446.