The petitioner after removal may make points questioning the jurisdiction of the case on the ground of improper service of process, or other points for which a special appearance would have to be entered, for the filing of the petition for removal is not a general appearance. The reason of this is that the object of removing a case is to give the federal court jurisdiction to try any questions that can arise in the case, as it is necessary for the protection of the nonresident defendant that the federal court may pass upon all questions involved.

In Goldey v. Morning News 67 the petition for removal stated upon its face that it was intended only as a special appearance, and the court held that when so worded it had only that effect.

But in Wabash Western Ry. Co. v. Brow 68 the petition was in the ordinary form, and did not purport on its face to be a special appearance. The court held in this case, also, that it was, in law, only a special appearance, and was not a waiver of the right to raise any defects even in the service of process.

court after removal can act on questions pending at filing petition, or take up any growing out of attachment proceedings. Mannington v. Hockington Val. R. Co. (C. C.) 183 Fed. 133; Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138. See "Removal of Causes," Dec. Dig. (Key-No.) § 111; Cent. Dig. §§ 237-239.

66 Southern R. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732. See "Removal of Causes," Dec. Dig. (Key-No.) § 109; Cent. Dig. 235.

67 156 U. S. 518, 15 Sup. Ct. 559, 39 L. Ed. 517. See "Removal of Causes," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 238.

68 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431. See, also, Clark v. Wells, 203 U. S. 164, 27 Sup. Ct. 43, 51 L. Ed. 138; Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 30 Sup. Ct. 125, 54 L. Ed. 272; Murphy v. Herring-Hall-Marvin Safe Co. (C. C.) 184 Fed. 495. See "Removal of Causes," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 238.

MOTION TO REMAND

132. The proper way for the party who opposes the removal to question the jurisdiction of the court is by a motion made in the federal court to remand the case to the state court. On this motion in the federal court he can try both questions of law and fact, but the allegations of the petition are prima facie to be taken as true." 69 The decision of the district court remanding the case is not appealable.

The act provides that, if the federal court remands the case, there can be no appeal from this decision; and this means not only that there can be no direct process to review the decision by appeal or writ of error, but that it cannot be questioned by any other process, like mandamus. The decision of the district court on the subject is final.7°

Nor can the remanding of the case by the court be questioned by writ of error to the state court after the state court has resumed jurisdiction.

In Missouri Pac. Ry. Co. v. Fitzgerald,"1 the state court had first entered an order removing the case, and then the circuit court had remanded it. The case thereupon pro

69 Loop v. Winter's Estate (C. C.) 115 Fed. 362; Camp v. Field (C. C.) 189 Fed. 285. On such a motion the federal court may examine the question of good faith when it is alleged that parties are joined to defeat jurisdiction. Clark v. Chicago, R. I. & P. R. Co. (D. C.) 194 Fed. 505. See "Removal of Causes," Dec. Dig. (Key-No.) § 107; Cent. Dig. §§ 225–234.

70 Ex parte Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, 34 L. Ed. 738; Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. See "Removal of Causes," Dec. Dig. (KeyNo.) § 107; Cent. Dig. §§ 225-234; "Appeal and Error," Cent. Dig. §§ 724, 725.

71 160 U. S. 556, 16 Sup. Ct. 389, 40 L. Ed. 536. See "Removal of Causes," Dec. Dig. (Key-No.) § 107; Cent. Dig. §§ 225-234; “Appeal and Error," Cent. Dig. §§ 724, 725.

ceeded in the state court, and the party who had originally petitioned for its removal took out a writ of error to the state court from the Supreme Court on the ground that he was denied a federal right. The Supreme Court held that his denial of this right was not by the state court, but by the circuit court, and that its acts could not be reviewed in this indirect way.

The refusal of the court to remand a case can be made the subject of exception, and can be taken up after a final decree in the case. It is, however, not a final decree.72

After a case is remanded to the state court, its jurisdiction revests, and the case proceeds there just as it would have done in the first instance.73

Mandamus will lie to compel remand of case over which the federal court has no jurisdiction."

72 Edrington v. Jefferson, 111 U. S. 770, 4 Sup. Ct. 683, 28 L. Ed. 594; Bender v. Pennsylvania Co., 148 U. S. 502, 13 Sup. Ct. 640, 37 L. Ed. 537. See "Removal of Causes," Dec. Dig. (Key-No.) § 107; Cent. Dig. §§ 225-234.

73 Birdseye v. Shaeffer (C. C.) 37 Fed. 821; Des Moines & Mississippi Levee Dist. No. 1 v. Chicago, B. & Q. R. Co., 240 Mo. 614, 145 S. W. 35, 39 L. R. A. (N. S.) 543; Queen Ins. Co. v. Peters, 10 Ga. App. 289, 73 S. E. 536. See “Removal of Causes," Dec. Dig. (KeyNo.) 109; Cent. Dig. § 235.

74 In re Wisner, 203 U. S. 449, 27 Sup. Ct. 150, 51 L. Ed. 264. See "Removal of Causes," Dec. Dig. (Key-No.) § 109; Cent. Dig. § 235.

CHAPTER XVII

OTHER COURTS VESTED WITH ORIGINAL JURISDICTION

133. The Supreme Court.

134.

Other Courts of Less General Interest.

THE SUPREME COURT AS A COURT OF ORIGINAL JURISDICTION

133. The Supreme Court of the United States exercises original jurisdiction in cases affecting ambassadors, public ministers, and consuls, and civil cases involving controversies where a state is a party, comprehending controversies:

(a) Between states-Jurisdiction exclusive. (b) Between the United States and a state.

(c) Between a state and citizens of another or other

states.

(d) Between a state and an alien or aliens.

The third article of the Constitution requires that there shall be one Supreme Court, and this is the only court established by the Constitution itself. The second section of the same article defines the federal judicial power, and, among others, names cases affecting ambassadors, other public ministers, and consuls, controversies between two or more states, and controversies between a state and citizens of another state.

The same section further provides that in all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. This provision giving original jurisdiction to the Supreme Court direct, does

not, however, prevent Congress from conferring concurrent jurisdiction in those cases on other federal courts.1

Acting under this grant, Congress, by section 233 of the Judicial Code, has provided as follows:

"The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens, or between a state and citizens of other states, or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction, of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul is a party."

Controversies Where a State is a Party

The statute limits these cases to controversies of a civil nature. This was in pursuance of the decisions rendered under the constitutional grant, which had held that the intent of the Constitution was simply to confer upon the federal courts jurisdiction of that sort. It could not have been the intent of the framers of the Constitution to give the federal court original jurisdiction of criminal proceedings in a state court.2

Proceedings for penalties, or a suit by a state on a judgment recovered under a statute creating a penalty, are not within the grant.3

1Bors v. Preston, 111 U. S. 252, 4 Sup. Ct. 407, 28 L. Ed. 419; Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482. See "Courts," Dec. Dig. (Key-No.) § 518; Cent. Dig. §§ 1109, 1444-1449. 2 Cohens v. Virginia, 6 Wheat. 264, 5 L. Ed. 257. See "Courts," Dec. Dig. (Key-No.) § 379; Cent. Dig. § 986.

WISCONSIN v. PELICAN INS. CO., 127 U. S. 265, 8 Sup. Ct. 1370, 32 L. Ed. 239. See "Courts," Dec. Dig. (Key-No.) § 379; Cent. Dig. 986.