Signature by Counsel

The petition need not be signed by the petitioner himself, but may be signed by his counsel."

How far Record may Supplement Defective Petition

It has been stated above that the petition must show all the necessary jurisdictional facts. As a matter of good pleading, this should always be done, independent of the remainder of the record, as the court should be entitled to have the petitioner's case clearly and consecutively presented in a single paper without being put to the trouble of searching through the record. At the same time it is the result of the decisions that, though the petition itself may be defective in jurisdictional facts, yet if those facts appear from other parts of the record the case is removable.

In Reed v. Hardeman Co. the petition averred that the amount involved was over $500, but the declaration showed that it was over $25,000. The court held that the case was removable under the act of August 13, 1888, though the averment of the petition itself did not show the necessary jurisdictional amount.

7

In National S. S. Co. v. Tugman a petition was defective in not showing the alienage of one of the parties; but other parts of the record showed it, and the court held that the case was removable.

Ins. Co. of St. Gall, Switzerland (C. C.) 163 Fed. 659. See "Removal of Causes," Dec. Dig. (Key-No.) § 86; Cent. Dig. §§ 132, 166–179.

5 Dennis v. Alachua Co., Fed. Cas. No. 3,791; Removal Cases, 100 U. S. 457, 25 L. Ed. 593. See "Removal of Causes," Dec. Dig. (KeyNo.) 86; Cent. Dig. §§ 166–179.

6 77 Tex. 165, 13 S. W. 1024. See "Removal of Causes," Dec. Dig. 'Key-No.) § 86; Cent. Dig. §§ 132, 175.

7106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87. See, also, Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657; Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 101, 18 Sup. Ct. 264, 42 L. Ed. 673; Kyle v. Chicago, R. I. & P. R. Co. (C. C.) 173 Fed. 238. See "Removal of Causes," Dec. Dig. (Key-No.) § 86; Cent. Dig. §§ 166

How far Petition Amendable

This must be considered, first, as to the power of the state court to allow an amendment before the order of removal is entered, and, second, as to the power of the federal court after the transcript has been filed in the latter court.

As to the state courts, an amendment can certainly be allowed at any time before the lapse of the time prescribed by law within which the petition must be filed.

It has also been held that the state court can allow the amendment of a petition even after the time within which the petition must be filed."

On principle, there is no reason why a state court cannot allow an amendment at any time before it has entered the order of removal. If the case is a removable case, and the defect is merely in stating such facts, the party ought not to be deprived of his statutory right to remove by the omission of a statement of fact which existed at the time the petition was filed, although not set out in the petition.

The extent of the right to amend the petition for removal after it is filed in the federal court is not clear. Many cases hold that an entire failure to aver a removable case cannot be corrected by amendment, because, unless the petition shows a jurisdictional case, the state court has never lost its jurisdiction, and it is unfair to that court to try to make a new case in the federal court. Hence they hold that only defects in matters of form can be amended.1o

The question turns largely on how far the Supreme Court meant to go in Kinney v. Columbia Savings & Loan

8 Hardwick v. Kean, 95 Ky. 563, 26 S. W. 589; Security Co. v. Pratt, 65 Conn. 161, 32 Atl. 396. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 94, 107; Cent. Dig. § 178.

Roberts v. Pacific & A. R. & Nav. Co. (C. C.) 104 Fed. 577. See "Removal of Causes," Dec. Dig. (Key-No.) § 94; Cent. Dig. § 178. 10 Shane v. Butte Electric R. Co. (C. C.) 150 Fed. 801; Wallenburg v. Missouri Pac. R. Co. (C. C.) 159 Fed. 217; Santa Clara County v. Goldy Mach. Co. (C. C.) 159 Fed. 750. See "Removal of Causes," Dec. Dig. (Key-No.) § 94; Cent. Dig. § 178.

Ass'n. There the petition contained the general jurisdictional allegation as to citizenship of different states, but did not state this to be the fact at the commencement of the suit as well as at the filing of the petition. The lower court allowed this to be inserted by amendment, and the Supreme Court held that its action was correct, and that such an amendment was allowable. This was the only point directly involved, and the court was careful to limit its decision to "the power of the circuit court to permit amendments of pleadings to show diverse citizenship, and of removal proceedings where there is a technical defect and there are averments sufficient to show jurisdiction." But the opinion also quotes approvingly older decisions which allowed an allegation of residence to be changed to one of citizenship; and it has always been held that an allegation of residence was not sufficient to give jurisdiction. But, notwithstanding this, it is the preponderant, and better opinion that a petition which shows no jurisdiction at all and is not helped out by other parts of the record is too defective to amend.

PLACE TO FILE PETITION

126. Sections 29, 30 and 31 of the Judicial Code require the petition for removal to be filed in the state court in the following cases:

(a) Suits by the United States or any officer thereof. (b) Suits between citizens of the same state claiming under land grants from different states.

11 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103. See, also, as examples of amendments, Flynn v. Fidelity & Casualty Co. (C. C.) 145 Fed. 265; Muller v. Chicago, I. & L. R. Co. (C. C.) 149 Fed. 939; Wilbur v. Red Jacket Consol. Coal & Coke Co. (C. C.) 153 Fed. 662; De La Montanya v. De La Montanya (D. C.) 158 Fed. 117; Kyle v. Chicago, R. I. & P. R. Co., 173 Fed. 238. See "Removal of Causes,” Dec. Dig. (Key-No.) §§ 94, 107; Cent. Dig. § 178.

(c) Cases turning on federal questions.

(d) Cases turning on the citizenship of the parties.

(e) Cases turning on the citizenship of the parties and removed as separable controversies.

(f) Cases turning on a denial of equal civil rights. Under sections 28 and 33 of the Judicial Code, the petition to remove must be filed in the district court of the United States:

(a) When the ground of removal is prejudice or local influence.

(b) When it is a suit or prosecution against revenue officers, etc.

PROPER AVERMENTS IN THE PETITION

127. A petition for removal under any one of the various classes of removal cases must show in its averments all the necessary facts to entitle the petitioner to a removal on the particular ground relied on.

When the Ground is the Existence of a Federal Question In order to ascertain the proper allegations in such a petition, it is necessary to compare the twenty-fourth section of the Judicial Code regulating the original jurisdiction of the court, with the twenty-eighth section, regulating its jurisdiction by removal. When this comparison is made, it will be seen that the petition ought to show the character of the suit, so as to show that it is a suit of a civil nature, at law or in equity, of which the court would have original jurisdiction, thus excluding proceedings by mandamus and other proceedings which, as shown in a previous connection, cannot be brought originally in the federal courts. The petition then ought to show that the suit arises under the "Constitution and laws of the United States, or treaties made or which shall be made under their

authority." Prior to the act of August 13, 1888, it was essential to show this by the petition, at least in those cases where it did not appear on the plaintiff's pleading, for under the prior acts a suit could be removed, as involving such a question, where the question was raised for the first time by the defendant's pleading; but it has been seen that under the present act the plaintiff's pleading must show the existence of a federal question upon its face before the case is removable at all.12 Hence, while it is better pleading, and due the court, to state not merely in general terms that the case arises under the Constitution and laws of the United States, or treaties made or which shall be made. under their authority, but also to state exactly what the question is and how it arises; still a failure to do this would not be fatal, because it would necessarily appear on the plaintiff's own pleading, and hence would come under the principle above described, that the petition may be supplemented by other parts of the record.13

The petition should conclude with the prayer for removal, and have the bond attached.

Averments Necessary When the Application is to Remove the

Entire Controversy on the Ground of Citizenship, etc.

In this class of cases the form of the petition is necessarily more important, for it is the petition which shows that the case is a removable case, and not the other parts of the record. In an ordinary case in a state court it is no part of any system of pleading to set out the citizenship of the parties. Hence the record in this case must be

12 Minnesota v. Northern Securities Co., 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870. See "Removal of Causes," Dec. Dig. (Key-No.) $86; Cent. Dig. §§ 132, 166–179.

13 But there are strong decisions to the effect that the petition must not merely aver the existence of a federal question in general terms, but must state facts necessary to show that such a question is involved and how it arose. City of New Castle v. Postal-Telegraph Cable Co. (C. C.) 152 Fed. 572; Rural Home Tel. Co. v. Powers (C. C.) 176 Fed. 986. See "Removal of Causes," Dec. Dig. (KeyNo.) § 86; Cent. Dig. §§ 132, 166-179.