er of removal. Anderson v. Manufacturers' Bank (N. Y. 1862) 14 Abb. Prac. 436.

In an action for breach of a contract to manufacture a patented article in a workmanlike manner and to pay royalties to the owner of the patent, and for failure to account for or to pay royalties on articles imitating those covered by the patent, an order of the trial court for the removal of the cause to a federal court will not be disturbed, objections to the form and sufficiency of the petition being more properly determinable by the federal court on motion to dismiss. Forncrook Mfg. Co. v. Barnum Wire Works (1884) 54 Mich. 552, 20 N. W. 582.

The petition's failure to allege notice is a defense to be asserted only on motion to remand in the United States District Court. Booki v. Pullman Co. (1914) 107 N. E. 418, 220 Mass. 71.

The State Court should determine the issue of when defendants should have answered, which controlled the question whether their petition and bond had been filed in time, though the final decision lay with the federal Supreme Court. Stephens v. Ringling (S. C. 1915) 86 S. E. 683.

Though defendant's petition and bond for removal are filed in apt time, and based on proper grounds, they do not affect 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) 11 Sup. Ct. 707, 708, 140 U. S. 137, 35 L. Ed. 386.

Where a motion for the removal of a cause on a petition and bond on file was overruled by the state court, on the ground that the cause was still at rules and not on the court docket, and defendant acquiesced in such decision by taking no further action for removal until the next term and then again presenting the motion, such action had the effect of a temporary withdrawal of the motion, and the state court retained jurisdiction until it was again presented. Mays v. Newlin (C. C. 1906) 143 Fed. 574.

Where a state court, on the filing of a petition for the removal to the federal court of an action against resident and nonresident defendants on the ground that the residents were fraudulently joined to defeat removal, declines to order a removal either on the petition alone or on accompanying affidavits, the case must go on for trial, but the nonresident defendant may, on the conclusion of plaintiff's evidence, or after the close of all the evidence, renew the application for removal, and the state court on finding that there was a fraudulent joinder, may remove the action; otherwise not. Chesapeake & O. Ry. Co. v. Banks' Adm'r (1911) 137 S. W. 1066, 144 Ky. 137.

The overruling of a motion to remove a cause that is not removable to a federal court is notice to the parties that the state court has assumed jurisdiction, and will try the case, and defendant cannot delay the trial by protesting against its jurisdiction, and demanding time to decide whether or not to submit to it; and a judgment against him after a trial in which he took no part will be sustained. Hickman V. Missouri, K. & T. Ry. Co. (1899) 52 S. W. 351, 151 Mo. 644, judgment reversed on other grounds Missouri, K. & T. Ry. Co. v. Hickman (1901) 22 Sup. Ct. 18, 183 U. S. 53, 46 L. Ed. 78.

Where a complaint filed in a state court, and a petition for the removal of the cause, raise an issue as to the necessary parties to the controversy, upon which the right of removal depends, the allegations of the petition must prevail. Mackaye v. Mallory (C. C. 1881) 6 Fed. 743, 19 Blatchf. 165. Whether an action of debt under Gen. Laws N. H. c. 147, § 13, imposing a penalty on corporate officers and agents for neglect or refusal, on demand, to furnish copies of accounts, records, and papers in their keeping, to creditors or stockholders entitled to inspect them, is a suit of a civil nature, will not be determined after defendant has taken the proper steps to remove it. Robertson v. Kettell (1887) 64 N. H. 430, 14 Atl. 78.

Where a party moved to consolidate and remove two cases from a state to a federal court, and filed but one petition and bond for removal, the court rightly assumed that he did not desire the removal of one without the other. Pelzer Mfg. Co. v. Sun Fire Office of London (1892) 36 S. C. 213, 15 S. E. 562.

Where the petition for removal was filed eight days after the passage of Act March 3, 1887, c. 373, 24 Stat. 552, by which the amount necessary to give the circuit courts jurisdiction was increased, and, in evident ignorance of such enactment, petitioner averred that the amount in dispute exceeded the former amount, but the record showed that the lands were actually valued at $25,000, the removal should have been granted, and a judgment rendered after refusal thereof will be reversed. Reed v. Hardeman County (1890) 77 Tex. 165, 13 S. W. 1024.

Where the United States circuit court has jurisdiction over the parties and causes of action on removal by virtue of the twelfth section of the judiciary act, it cannot be affected by any amendment of the pleading so as to change the nature of the controversy. Green v. Custard (1859) 23 How. 484, 16 L. Ed. 471; Jones v. Foreman (1881) 66 Ga. 371.

106. Determination of issues of law. -A petition for removal of a case to the federal court presents to the state court a question of law as to whether,

admitting the facts stated in the petition to be true, it appears on the face of the record which includes the petition, pleading, and proceedings down to that time, that petitioner has complied with the statute and is entitled to removal of the suit. Donovan v. Wells Fargo & Co. (1909) 169 Fed. 363, 94 C. C. A. 609, 22 L. R. A. (N. S.) 1250; Powers v. Chesapeake & O. R. Co. (C. C. 1895) 65 Fed. 129 (judgment affirmed [1898] 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673; Steed v. Henry (Ark. 1915) 180 S. W. 508; Southern Ry. Co. v. Hudgins (1899) 33 S. E. 442, 107 Ga. 334; Morbeck v. Bradford-Kennedy Co. (1910) 113 Pac. 89, 19 Idaho, 83; Boatmen's Bank of St. Louis v. Fritzlen (1907) 89 Pac. 915, 75 Kan. 479, 22 L. R. A. (N. S.) 1235; Chesapeake & O. Ry. Co. v. Banks' Adm'r (1911) 137 S. W. 1066, 144 Ky. 137; Craven v. Turner (1890) 82 Me. 383,. 19 Atl. 864; State ex rel. Iba v. Mosman (1910) 133 S. W. 38, 231 Mo. 474; Schwyhart v. Barrett (Mo. App. 1910) 130 S. W. 388; Sears v. Atchison, T. & S. F. Ry. Co. (1912) 147 S. W. 860, 163 Mo. App. 711; Cox v. Atlantic Coast Line R. Co. (1914) 82 S. E. 979, 166 N. C. 652; Cogdill v. Clayton (N. C. 1915) 87 S. E. 338; Western Coal & Mining Co. v. Osborne (Okl. 1911) 119 Pac. 973; Chicago, R. I. & P. Ry. Co. v. Brazzell (1912) 124 Pac. 40, 33 Okl. 122; Texas & P. Ry. Co. v. Eastin & Knox (Civ. App. 1905) 89 S. W. 440 (judgment reversed Eastin & Knox v. Texas & P. Ry. Co. [1906] 92 S. W. 838, 99 Tex. 654).

In determining whether a defendant is entitled to a removal, the state court must examine the whole record as it was at the time of filing the petition for removal, including the petition. Little York Gold Washing & Water Co. v. Keyes (1877) 96 U. S. 199, 201, 24 L. Ed. 656; Missouri, K. & T. Ry. Co. v. Chappell (D. C. 1913) 206 Fed. 688; Miller v. Soule (D. C. 1915) 221 Fed. 493; Springer v. Bricker (1905) 76 N. E. 114, 165 Ind. 532; Illinois Cent. R. Co. v. Sheegog's Adm'r (1907) 103 S. W. 323, 31 Ky. Law Rep. 691.

107. Determination of issues of fact. -Issues of fact on a petition for removal from a state to a federal court are to be determined in the federal court, and the state court in determining whether it will surrender jurisdiction must accept as true the allegations of fact in the petition. Kansas City, Ft. S. & M. R. Co. v. Daughtry (1891) 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963; Texas & P. Ry. Co. v. Eastin & Knox (1909) 29 Sup. Ct. 564, 214 U. S. 153, 53 L. Ed. 946 (affirming judgment [1907] 102 S. W. 105, 100 Tex. 556); Chesapeake & O. R. Co. v. Cockrell (1914) 34 Sup. Ct. 278, 232 U. S. 146, 58 L. Ed. 544 (affirming judgment [1911] 137 S. W. 1066, 144 Ky. 137); Boatmen's Bank v. Fritzlen (1905) 135 Fed. 650, 68 C. C. A. 288

(writ of certiorari denied [1905] 25 Sup. Ct. 803, 198 U. S. 586, 49 L. Ed. 1174); Sinclair v. Pierce (C. C. 1892) 50 Fed. 851; Powers v. Chesapeake & O. R. Co. (C. C. 1895) 65 Fed. 129 (judgment affirmed [1898] 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673); Fidelity Trust & Safety-Vault Co. v. Newport News & M. V. Co. (U. C. 1895) 70 Fed. 403; Shane v. Butte Electric Ry. Co. (C. C. 1908) 150 Fed. 801; Atlantic Coast Line R. Co. v. Bailey (C. C. 1907) 151 Fed. 891; Stix v. Keith (1890) 90 Ala. 121, 7 South. 423; Texarkana Telephone Co. v. Bridges (1905) 86 S. W. 841, 75 Ark. 116; St. Louis Southwestern Ry. Co. v. Adams (1908) 112 S. W. 186, 87 Ark. 136; Steed v. Henry (Ark. 1915) 180 S. W. 508; Horan v. Strachan (1889) 9 S. E. 429, 82 Ga. 566; Southern Ry. Co. v. Hudgins (1899) 33 S. E. 442, 107 Ga. 334; Lane Bros. Co. v. Rickard (1911) 70 S. E. 565, 135 Ga. 650; Van Horn v. Litchfield (1886) 70 Iowa, 11, 29 N. W. 783; Wisecarver & Reynard v. Chicago, R. I. & P. Ry. Co. (Iowa, 1908) 117 N. W. 961; Boatmen's Bank of St. Louis v. Fritzlen (1907) 89 Pac. 915, 75 Kan. 479, 22 L. R. A. (N. S.) 1235; Illinois Cent. R. Co. v. Jones' Adm'r (1904) 80 S. W. 484, 118 Ky. 158, 26 Ky. Law Rep. 31; Guinault v. Louisville & N. R. Co. (1890) 42 La. Ann. 52, 7 South. 62; Craven v. Turner (1890) 19 Atl. 864, 82 Me. 383; Long v. Quinn Bros. (1913) 102 N. E. 348, 215 Mass. 85; Munnss V. American Agricultural Chemical Co. (1914) 103 N. E. 859, 216 Mass. 423; Roberts v. Chicago, St. P., M. & O. Ry. Co. (1892) 48 Minn. 521, 51 N. W. 478; State ex rel. Iba v. Mosman (1910) 133 S. W. 38, 231 Mo. 474; Herrick v. Norfolk-Southern R. Co. (1912) 73 S. E. 1008, 158 N. C. 307; Hurst v. Southern Ry. Co. (N. C. 1913) 78 S. E. 434; Hyder v. Southern Ry. Co. (1914) 83 S. E. 689, 167 N. C. 584; Cogdill v. Clayton (N. C. 1915) 87 S. E. 338; Western Coal & Mining Co. v. Osborne (Okl. 1911) 119 Pac. 973; Chicago, R. I. & P. Ry. Co. v. Brazzell (1912) 124 Pac. 40, 33 Okl. 122. CONTRA, Burch v. Davenport & St. P. R. Co. (1877) 46 Iowa, 449; Dunn v. Burlington, C. R. & N. R. Co. (1886) 35 Minn. 73, 27 N. W. 448; Levy v. O'Neil (N. Y. 1873) 14 Abb. Prac. (N. S.) 63; Clark v. Opdyke (N. Y. 1877) 10 Hun, 383.

So the federal court alone can determine controverted issues of fact as to the citizenship or residence of the parties. Carson v. Hyatt (1886) 6 Sup. Ct. 1050, 1054, 118 U. S. 279, 30 L. Ed. 167; Burlington, C. R. & N. Ry. Co. v. Dunn (1887) 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159; Kansas City, Ft. S. & M. R. Co. v. Daughtry (1891) 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963 (affirming [1890] 88 Tenn. [4 Pickle] 721, 13 S. W. 698); Ashe v. Union Cent. Life Ins. Co. (C.

C. 1902) 115 Fed. 234, 235; Miller v. Soule (D. C. 1915) 221 Fed. 493; Horan v. Strachan (1889) 82 Ga. 566, 9 S. E. 429. CONTRA, Disbrow v. Driggs (N. Y. 1858) 8 Abb. Prac. 305, note, 16 How. Prac. 346; Miller v. Kent (N. Y. 1881) 60 How. Prac. 451.

Fraud in joining resident defendants to defeat the right of removal. St. Louis Southwestern Ry. Co. v. Adams (Ark. 1908) 112 S. W. 186; Southern Ry. Co. v. Sittasen (Ind. 1905) 74 N. E. 898 (reversed [1906] 76 N. E. 973, 166 Ind. 257); Boatmen's Bank of St. Louis v. Fritzlen (1907) 89 Pac. 915, 75 Kan. 479; Illinois Cent. R. Co. v. Sheegog's Adm'r (1907) 103 S. W. 323, 31 Ky. Law Rep. 691; Sears v. Atchison, T. & S. F. Ry. Co. (1912) 147 S. W. 860, 163 Mo. App. 711; Town of Monroe v. Connecticut River Lumber Co. (1891) 66 N. H. 628, 32 Atl. 152; Davis v. Rexford (N. C. 1907) 59 S. E. 1002; Lloyd v. Southern Ry. Co. (1914) 81 S. E. 1003, 166 N. C. 24; Western Coal & Mining Co. v. Osborne (Okl. 1911) 119 P. 973; Texas & P. Ry. Co. v. Eastin & Knox (Tex. Civ. App. 1905) 89 S. W. 440, judgment reversed Eastin & Knox v. Texas & P. Ry. Co. (1906) 92 S. W. 838, 99 Tex. 654. CONTRA, Bradshaw v. Bowden (D. C. 1914) 226 Fed. 323; Chesapeake & O. Ry. Co. V. Banks' Adm'r (1911) 137 S. W. 1066, 144 Ky. 137.

The amount in controversy. Postal Tel. Cable Co. v. Southern Ry. Co. (C. C. 1898) 88 Fed. 803; Western Union Tel. Co. v. Horack (1881) 9 Ill. App. 309; First Nat. Bank v. Glaser (Tex. Civ. App. 1907) 102 S. W. 171. CONTRA, Disbrow V. Driggs (N. Y. 1858) 8 Abb. Prac. 305, note, 16 How. Prac. 346. And whether the petition for removal was filed in time. Fidelity Trust & Safety-Vault Co. v. Newport News & M. V. Co. (C. C. 1895) 70 Fed. 403. But see Orosco v. Gagliardo (1863) 22 Cal. 83, holding that under the statute of California respecting the removal of causes the court must first be fully satisfied by proper evidence that the application for removal is founded upon facts which entitle the applicant to the order, and for this purpose the court has a right to inquire into the truth of the facts set forth in the petition as well as to investigate the sufficiency of the security, and Disbrow v. Driggs (N. Y. 1858) 8 Abb. Prac. 305, note, 16 How. Prac. 346, holding that the mode of ascertaining the fact of the alienage or citizenship of the petitioner for the removal of a cause from the state court to the federal court rests with the state court, and White v. Holt (1882) 20 W. Va. 792, holding that the facts set out in a petition for the removal of a case from a state court to a federal court should be such as, taken with what already appears on the record, show that the suit, under the act of Congress, is removable, and, if such facts are not al

leged in the petition and appear in the record, it is the duty of the state court to inquire no further, but to refuse to order the removal of the case. If such facts are alleged in the petition and show the suit to be removable, such facts may be controverted, and the court will then hear the evidence and judicially decide on the evidence, and either enter an order removing or refusing to remove the cause.

Where an action could not have been originally brought in the federal Circuit Court, the removal acts do not require the determination of a question of alleged fraudulent joinder of parties by the federal court after the filing of a removal petition and bond. Ward v. Pullman Car Corp. (Ky. 1908) 114 S. W. 754.

Whether plaintiff reduced the ad damnum of his writ to $3,000 or less prior to the filing of defendant's petition and bond for removal of the cause must be determined in the state court on the face of the record. Munnss v. American Agricultural Chemical Co. (1914) 103 N. E. 859, 216 Mass. 423.

Where plaintiff denies the allegations of a petition to remove, the burden is on the petitioner for removal to prove them. Carson v. Dunham (1887) 7 Sup. Ct. 1030, 1032, 121 U. S. 421, 30 L. Ed. 992; Gibson v. Chesapeake & O. Ry. Co. (1914) 215 Fed. 24, 131 C. C. A. 332; Armstrong v. Kansas City Southern Ry. Co. (C. C. 1911) 192 Fed. 608.

A second application for removal to a federal court raising the issue of fraudulent joinder of defendants, when made after a ruling sustaining, in favor of one of two defendants, a demurrer to the evidence, cannot be regarded as erroneously denied by a state court, where the evidence demurred to is not made part of the record, and this issue was first raised on the second application, without stating when the petitioner first learned of the fraud, and the averments of fraud were specifically denied, and, so far as the record discloses, the petitioner, who had the affirmative of the issue, failed to make out its case. Kansas City Suburban Belt Ry. Co. v. Herman (1902) 23 Sup. Ct. 24, 187 U. S. 63, 47 L. Ed. 76, affirming judgment (1902) 68 Pac. 46, 64 Kan. 546.

108. Hearing by state court.-A motion to dismiss a writ of error takes precedence over one to remove the cause to the United States court. Edgarton v. Webb (1870) 41 Ga. 417.

The hearing of an application for the removal of a cause from a state to a United States court should have precedence over a motion to dismiss for nonpayment of taxes. Bragg v. Tibbs (1871) 44 Ga. 294.

It is the duty of the court, and not of the clerk, to determine the sufficiency of the security accompanying the

petition. Southern Pac. Co. v. Harrison (1889) 73 Tex. 103, 11 S. W. 168.

109. Review of determination as to right of removal.-Defendant's remedy for the erroneous denial of removal is by a petition in error, presenting the facts by a bill of exceptions or a plea to the jurisdiction. Shelby v. Hoffman (1857) 7 Ohio St. 450.

A defendant who makes no application for a removal cannot assign for error the refusal of the state court to permit a removal on the application of other defendants. Merchants' CottonPress & Storage Co. v. Insurance Co. of North America (1894) 151 U. S. 368, 14 Sup. Ct. 367, 38 L. Ed. 195.

The fact that a nonresident complainant, as a stockholder of the banking corporation suing, is not allowed to transfer the cause to the United States court, can only be assigned for error by him, and when he does not unite in the appeal the corporation cannot be heard to complain of the refusal to transfer the cause. Danville Banking & Trust Co. v. Parks (1878) 88 Ill. 170.

em

The refusal of the court below to transfer a case to the federal court cannot be assigned for error, unless the affidavit and bond on which the motion for removal was based are bodied in the bill of exceptions, and also the exception, if any, to the decision of the court refusing the motion. The affidavit and bond do not become a part of the record unless thus preserved. Merchants' Despatch Transp. Co. v. Joesting (1878) 89 Ill. 152; Cairo & St. L. R. Co. v. Easterly, Id. 156; Peirce v. Walters (1897) 45 N. E. 1068, 164 Ill. 560; Louisville & N. R. Co. v. Satterwhite (1904) 79 S. W. 106, 112 Tenn. 185. But see Stratton's Independence v. Sterrett (Colo. 1911) 117 Pac. 351, holding that a petition to a state court for removal of a cause to a federal court must be considered on review, though it was not incorporated in the bill of exceptions, and no exception was saved to the ruling of the court in refusing it, regardless of state code provisions, defining what constitutes the record proper.

Burns' Rev. St. Ind. 1894, § 640 (Horner's Rev. St. 1897, § 628), provides that one may have an exception noted at the end of the decision, where the decision and the ground of objection are entered on the legal record. Section 662 (section 650) declares that the legal record comprises all proper entries made by the clerk, and all papers filed therein, except papers used as evidence, affidavits, and other papers, when they relate to collateral matters, which shall not be certified unless made a part of the record by exception or by order of court. Held, that the denial of an application to remove a cause to a federal court, not relating to the merits, could not be re

viewed on appeal, where the ruling and application were not in the record by bill of exceptions or order of court. American Carbon Co. V. Jackson (1900) 56 N. E. 862, 24 Ind. App. 390.

An action was filed in Tennessee by a citizen of Kentucky against another citizen of Kentucky. Thereafter, on the death of the plaintiff, a citizen of Tennessee was substituted. Defendant then presented to the court a petition, with proper bond, for removal of the cause to the federal court, on the ground of diversity of citizenship, and that the case was then for the first time removable, and moved the court for permission to file the petition and bond and for an order of removal, which the court denied. No bill of exceptions was tendered making the petition and bond a part of the record at that term of court. The case was tried at a subsequent term, and the petition and bond were incorporated in the bill of exceptions then filed, and were copied into the transcript on appeal. Held, that this was ineffective to bring them into the record and authorize the Supreme Court on appeal to consider them and review the action of the trial court. Louisville & N. R. Co. v. Fort (1904) 80 S. W. 429, 112 Tenn. 432.

Objection to the sufficiency of a bond on removal cannot be raised for the first time on bill of exceptions to the order of removal. Stone v. Sargent (1880) 129 Mass. 503.

Where a cause has been removed, and all the papers in it have been afterwards destroyed by fire, and the parties then, by writing filed in the United States court, admit that the cause was brought to the United States court by transfer from the state court in accordance with the statutes in such case provided, and asked and obtained leave to file a declaration and plea as substitutes for the ones originally filed and now destroyed, this court will, in the absence of all proof to the contrary, presume that the citizenship requisite to give the circuit court jurisdiction was shown in some proper manner, though it be not apparent on the mere pleadings. Pittsburgh, C. & St. L. R. Co. v. Ramsey (1874) 22 Wall. 322, 22 L. Ed. 823.

An inspection of the petition for removal is essential to determine whether it contained allegations sufficient to authorize a transfer of the cause, and in its absence from the record it must be presumed, in support of the judgment of the state court, that it was defective in the allegations of jurisdictional facts. Bush v. Kentucky (1882) 107 U. S. 110, 1 Sup. Ct. 625, 27 L. Ed. 354.

Where a bond for removal is not objected to, it will be presumed to be formal and the sureties sufficient. Terre Haute & I. R. Co. v. Abend (1881) 9 Ill. App. (9 Bradw.) 304; Western Union Tel. Co. v. Horack, Id. 309.

Where, on appeal from an order denying a petition for removal, it appears that such petition was not made until after an amended complaint had been filed after answer, and the original complaint is not in the record, it will be presumed that there was no such difference between the complaints as would authorize a removal at such time. Pennsylvania Co. v. Leeman (1903) 66 N. E. 48, 160 Ind. 16.

The inspection of a petition to remove a prosecution from a state to the federal court is essential to determine whether it contained allegations sufficient to authorize a transfer, and in its absence it must be presumed that it was defective in the allegation of jurisdictional facts, and that the court below did right in disregarding it. Busch v. Commonwealth (1882) 80 Ky. 244, 3 Ky. Law Rep. 740.

The court receiving an application for the removal of a cause into the United States circuit court cannot arbitrarily reject the bond tendered, if sufficient in form, without specifying any cause; and upon appeal, therefore, such a bond must be assumed to have been sufficient if not otherwise stated. Mix v. Andes Ins. Co. (1878) 74 N. Y. 53, 30 Am. Rep. 260, reversing (1876) 9 Hun, 397.

An error of the state court in denying an application to remove to a federal court is not prejudicial if, notwithstanding such denial, the record is filed in the federal court, and the cause proceeds therein to final hearing, when it is remanded, and the state court in the meantime awaits the action of the federal court. Missouri Pac. Ry. Co. v. Fitzgerald (1896) 160 U. S. 556, 16 Sup. Ct. 389, 40 L. Ed. 536.

On the removal of a cause from the state to the United States court, the amount of surety to be taken is a matter in the discretion of the court to which the petition is presented, and will not be reviewed by the general term, except in an extraordinary case. Bell v. Lycoming Fire Ins. Co. (N. Y. 1875) 3 Hun, 409, 6 Thomp. & C. 54.

Whether a party has waived his right to have a cause removed from a state to United States court, and submitted it for final adjudication in the state court, is a question to be determined from the record. Pollock v. Cohen (1877) 32 Ohio St. 514.

In reviewing an order refusing to remove a cause, on the ground that the amount in controversy was not large enough, the entire record may be examined to ascertain the value of the matter in controversy. Building & Loan Ass'n of Dakota v. Cunningham (1898) 47 S. W. 714, 92 Tex. 155.

Where a proper application made by a nonresident defendant for the removal of a case from the state court to the United States court is refused by the state court, whose judgment is reversed on writ of error to the state

Supreme Court, plaintiff cannot dismiss the case, so as to defeat its removal to the United States court, by an entry of dismissal before the remittitur from the Supreme Court has been formally made the judgment of the lower court. Louisville & N. R. Co. v. Newman (1909) 64 S. E. 541, 132 Ga. 523.

Where a cause is instituted in the state court by a citizen of this state against a nonresident, and the latter applies for its removal to the United States court, and on its being refused appeals to this court, which requires the cause to be removed on the execution of the proper bond, and on return of the case to the state court the nonresident omits to give the bond, the state court will have jurisdiction to go on and try the case. Hill v. Henderson (1850) 21 Miss. (13 Smedes & M.) 688.

In view of the conflict of the decisions of the federal courts as to whether a cause, in order to be entitled to be removed from a state to a federal court must be an action which might have been instituted in the federal court in the first instance, a decision of the trial court, refusing to remove a cause to the federal court because the ground of removal arose after its commencement, will not be reversed on appeal, though a motion is pending in the federal court for the removal of the cause to it. Phoenix Ins. Co. v. Summerfield (1893) 70 Miss. 827, 13 South. 253.

110. Review by state court.-The state court may not review or control the exercise of the jurisdiction of the federal court in determining the removability of a case. Chesapeake & O. R. Co. v. McCabe (1909) 29 Sup. Ct. 430, 435, 213 U. S. 207, 53 L. Ed. 765; Ryan v. Mathews (1884) 64 Iowa, 250, 20 N. W. 174.

A state court has no power to entertain an appeal or other proceeding to review an order made in such court granting a petition to remove a cause from the state court to a court of the United States. Akerly v. Vilas (C. C. 1869) Fed. Cas. No. 119; Ellerman v. New Orleans, M. & T. R. Co. (C. C. 1875) Fed. Cas. No. 4.382; Ewert v. Minneapolis & St. L. R. Co. (1914) 150 N. W. 224, 128 Minn. 77; Fargo v. McVicker (N. Y. 1869) 55 Barb. 437, 38 How. Prac. 1; Kendrick's Lessee v. McQuary (1814) 3 Tenn. (Cooke) 480. CONTRA, Illinois Cent. R. Co. v. Jones' Adm'r (1904) 80 S. W. 484, 118 Ky. 158, 26 Ky. Law Rep. 31; State ex rel. Coons v. Judge of Thirteenth Judicial Dist. (1871) 23 La. Ann. 29, 8 Am. Rep. 583; Stone v. Sargent (1880) 129 Mass. 503; Lloyd v. Southern Ry. Co. (1914) 81 S. E. 1003, 166. N. C. 24.

Though the requirements necessary to a suspensive appeal from such an order may have been observed, they