And the same rule applies to removals under section 34, where an action has been brought by an alien against a civil officer of the United States, being a nonresident of the State in which the suit is brought. Conclusion and Prayer. Your petitioner herewith files a good and sufficient bond under the statute in such case made and provided, conditioned as the law directs and that he will within thirty days from the filing of the petition for removal file a certified copy of the record of the case in the District Court of the United States for the Western District of .... and for the payment of all costs which may be awarded by said court, if the said District Court shall determine that this suit was improperly and wrongfully removed thereto. ........... Your petitioner therefore prays the court that it proceed no further herein except to order the removal, accept the bond herewith presented, and direct a transcript of the record to be made and certified as provided by law. Attorneys for Petitioner. As to amending the petition for removal, see Simkins, Federal Equity Suit, 2d ed. p. 855. Verification of the Petition. A.B. or A.B. and C.D. being duly sworn say (or severally depose and say) that he is the petitioner or one of the petitioners for the removal of the case to the District Court of the United States as prayed for in said petition, that the allegations of said petition are true of his own knowledge, except such as are therein stated on information and belief, and as to such matters he believes them to be true. Subscribed and sworn to) before me Officer Taking, etc. Affiant If verification by attorney, use same form, except some reason must be shown why the defendant petitioner did not verify the petition. Title of Case. Bond for Removal. In the District (or Superior) Court of the State of sitting in and for the County of in said State. Know all men by these presents that we as principals and as sureties are held and firmly bound unto .... the plaintiff or plaintiffs in this cause, his successors and assigns, in the sum of ..... ... dollars for the payment of which well and truly to be made, we and each of us bind ourselves, our heirs, executors, and administrators, jointly and severally by these presents. in the State of Conditioned nevertheless, that whereas A.B. (or A.B. and C.D.) have applied to the District (or Superior) Court in and for the County of to remove the case pending therein is plaintiff and ..... is (or are) defendant (or defendants) to the District Court of the United States for the (or the division of said District) sitting in said District and State, and that all further wherein ..... District of ..... ......... in the City of action in the State court aforesaid be stayed. Now therefore if your petitioners shall enter in the District Court of the United States for the District aforesaid (or division of the District as aforesaid) within thirty days from the filing of this petition for removal a copy of the record of the suit as required by law, and shall pay or cause to be paid all costs that may be awarded therein by said District Court of the United States, if the said Court shall hold that said suit was improperly or wrongfully removed thereto,* then this obligation to be void, else to be in full force and effect. Approved and accepted. Signatures ...... With surety or sureties } Notice of Intention to File Petition and Bond for Removal. By section 29, New Code, notice in writing is required to be given by the petition or petitioners for removal to the adverse party prior to filing the petition and bond, that the same will be filed, as follows: Notice is hereby given that the defendant (or defendants) in the above entitled cause (naming them), will on the .... day of file in the District (or Superior) Court of the State of in and for the County of ... . . . ........ A. D., ....... sitting in said State in which said suit 19 *NOTE. When entering special bail in the suit is required, you may add, “and shall then and there enter special bail in said suit," section 29, New Code. now pending, his (or their) petition and bond for the removal of the said cause from said State Court to the District Court of the United States in and for the District in the State of ..... ..... ........... Attorney for defendant. Evidence of service accepted or officially served should appear. For effect of filing petition and bond in the State court, see Simkins, Federal Equity Suit, 2d ed. p. 804. (Title of Case.) Notice of Appearance. To the clerk of the District Court of the United States in and for the ... District of the State of ...... Please enter our appearance for the defendant in the above cause. And now comes the plaintiff and moves the court to remand the above entitled cause to the District (or Superior) Court in and for the County of in the State of on the ground that, etc. ........ ........... (State grounds for remanding.) (See form Simkins, Federal Equity Suit, 2d ed. p. 876.) Attorneys for plaintiff. See Simkins, Federal Equity Suit, 2d ed. for causes for remanding, pp. 816 et seq.; also p. 874 (and proceedings thereunder) to p. 881. Order Remanding. (The Title of Case.) ..... .... (Title of Court.) day of ......... This cause coming on to be heard on the A. D., on a motion to remand, and the Court having fully considered the same, it is the opinion of the Court that the said motion should be granted, and it is ordered that this cause be and the same is hereby remanded to the District (or Superior) Court of the County of ....... in the State of from which the same was removed, for further proceedings. S. S. at L.-11. District Judge. Cannot Appeal From Order. By section 28 of the New Code, whenever the United States district court shall order the cause remanded, such remand shall be immediately carried into execution, and no appeal or writ of error remanding such cause shall be allowed. See "Remanding," Simkins, Federal Equity Suit, 2d ed. pp. 815 et seq. Removal for Prejudice or Local Influence. First. By section 28 of the New Code a nonresident may remove a cause from the State court to the proper district of the United States court at any time before the trial thereof in the State court, when it is made to appear that from prejudice or local influence he will not be able to obtain justice in the State court, or any other State court to which the defendant may under the laws of the State have a right to remove the said case because of prejudice or local influence. Second. It is provided further that if the suit can be prosecuted as to other defendants in the State court without being affected by such prejudice or local influence, and that a separation of the suit would not be prejudicial to any of the parties to the same, then the United States district court may remand the case as to such defendants, though retained as to those against whom the prejudice complained of exists. Third. Where the removal has been made on the affidavit of any party as to local prejudice or influence against him, the United States district court, upon application of the adverse party, must examine into the truth of the grounds of the affidavit, and if it does not appear that the prejudice or local influence exists, he must remand the cause to the State court for further proceeding. Simkins, Federal Equity Suit, 2d ed. pp. 800, 801. The Form for Petition. (Title of Case.) To the Hon. Court of the State of in said State. (Title of Court.) .., Judge of the District (or Superior) ..., sitting in and for the County of Your petitioner (naming him) respectfully represents to this honorable court that the plaintiff above named in the title of the case brought suit of a civil nature in the District Court of the County of in the State of of case). ... ...... against your petitioner (stating briefly nature That the amount (or value of the subject-matter) exceeds the sum of three thousand dollars exclusive of interest and costs. That the plaintiff was, at the time of the commencement of the suit, and is now a citizen of the State of ........... ........... residing in the County of in said State, and that petitioner was and is now a citizen and residing in the County of of the State of ........... said State at the commencement of this suit. in That said cause has not been tried in the State court, and petitioner desires to remove the same before the trial thereof from said State court to the United States District Court to be held in the of the State of .......... District Your petitioner therefore prays this honorable court to proceed no local influence against him in the County of ..., in the State of where said cause is pending, and in favor of the plaintiff, he will not be able to obtain justice in said court, or in any other State court to which said defendant may, under the laws of the State, have a right to remove said cause on account of such prejudice or local influence. Your petitioner herewith presents a good and sufficient bond under the statutes in such cases made and provided and conditioned as the law directs. Your petitioner therefore prays this honorable court to proceed no further therein except to accept and approve the bond and enter an order removing the cause as prayed for, and direct the record as required by law to be made for transmission to the District Court of the United States as requested in said petition. Signed by petitioner or petitioners. With good and sufficient surety. (Verification of the petition and form of bond as before given. See Simkins, Federal Equity Suit, 2d ed. pp. 800, 801.) Having given the sections of the New Code relating to removals, and noted the changes made by said Code, which has been substituted for the jurisdictional and removal act of 1888, and having given the forms now required by reason of the changes made in removals from the State to the Federal courts, I will refer to Simkins, Federal Equity Suit, 2d ed., beginning at p. 798, for a construction of every phase of the law relating to removals. 1. As to proceedings in State courts, p. 802. 2. Powers of State courts, p. 806. |