§ 39. “The jurisdiction of the [United States] Court to justify removal and retention after removal, when motion to remand is made, should be clear. Where the jurisdiction is doubtful, the case should be remanded."-The Circuit Courts of the United States, being Courts of limited jurisdiction, and the right to remove a cause from a State court to a United States Circuit Court being statutory only,3 and the judgment of such Courts being reversible upon appeal or writ of error where they erroneously assume jurisdiction, such Circuit Courts should resolve all doubts in removal cases against their jurisdiction. The statutes should be strictly construed; and no disputable jurisdiction should be entertained.5 The reasons for the Circuit Courts of the the Federal Courts." Hughes v. ened. The intention of the act is Green, 75 Fed. 691, 692. But the Judge, in that case, pressed the invitation to remain in the State court too strongly, and his action was reversed upon appeal. Hughes v. Green, 56 U. S. App. 56, 28 C. C. A. 537, 84 Fed. 833. "It was the obvious purpose of the act of March 3, 1887, to restrict the right of removal of an action from a State court to the Circuit Court, as it then existed. The right is restricted as to the parties who can exercise it, as to the classes of actions in which it may be exercised, and as to the time at which an election to exercise the privilege must be made." Woolf v. Chisolm, 30 Fed. 881, 24 Blatchf. 405. so clear that it should be strictly construed against any one seeking to evade the additional limitations which it puts upon the right of removal." Dwyer v. Peshall, 32 Fed. 497. § 39. 1 Hutcheson v. Bigbee, 56 Fed. 329. 2 Ante § 23. 5 Burnham v. First Nat. Bank, 10 U. S. App. 485, 3 C. C. A. 486, 53 Fed. 163. This rule is stated, or acted upon without statement, in the following Circuit Court cases: Plant v. Harrison, 101 Fed. 307; Johnson v. Wells, Fargo & Co., 91 Fed. 1; S. c., 98 Fed. 3; Concord Coal Co. v. Haley, 76 Fed. 882; Ladd v. West, 55 Fed. 353; Blue Bird Min. Co. v. Largey, Fed. 289; "The amendments of 1887 were plainly meant to restrict removals from State to Federal Courts. The value of the matter in dispute is increased from $500 (including interest) to $2,000 (excluding interest). Removals can be had only by the defendant, instead of by either party, as heretofore. The time within which such removal shall be had is materially short-890; 49 Fitzgerald v. Missouri Pac. R. Adams v. May, 27 Fed. 907; United States declining doubtful jurisdiction in removal cases are of a very persuasive character and have perhaps never been better stated than by Judge Caldwell. Kansas v. Bradley, 26 Fed. 289; 193; resulting from questions of disputed or doubtful jurisdiction in such cases by repealing the act Wolff v. Archibald, 14 Fed. 369, which allowed an appeal or writ 4 McCr. 481; of error from an order remanding Under the existing law, an order remanding a cause elimi Evans v. Faxon, 10 Fed. 312, 11 a cause. Biss. 175; | Gaughan v. Northwestern Ferti-nates the question of jurisdiction lizer Co., 10 Fed. Cas. 91, 3 Biss. from the case, and remits it to the 485, 12 Am. Law Reg. (N. S.) 569, State court for trial upon its merits. 5 Chi. Leg. News 337, 6 Am. Law If it turns out on the trial of the T. Rep. 101, 18 Int. Rev. Rec. 162, cause in the State court that it in5 Leg. Op. 58; volves a Federal question, and the right claimed under the Federal law is denied to the party claiming it, the judgment of the State court on that question may be reviewed in the Supreme Court of the United States. But the order remanding the cause is not subject to review, and the case is finally disposed of on its merits, and the litigation ended. On the other hand, the er Illinois v. Chicago & A. R. Co., 12 Fed. Cas. 1197, 6 Biss. 107, 6 Chi. Leg. News 316, 1 Cent. Law J. 340, 10 Alb. Law J. 36, 9 Am. Law Rev. 151, 6 Leg. Gaz. 252. It is said expressly or in effect in some cases under prior laws that such laws should be liberally construed, and doubts resolved in favor of removability. Home Life Ins. Co. v. Dunn, 19 roneous assumption of jurisdiction Wall. 214, 22 L. 68; in a removal cause works serious Deakin v. Lea, 7 Fed. Cas. 281, hardship. After the delay and ex11 Biss. 27. pense incident to the preparation But that is not the present prac- and trial of a case on its merits, the tice. 6"It is urged by counsel for the defendant that if it is doubtful whether the cause is removable, the doubt should be resolved in favor of the jurisdiction of this Court. But the converse is the rule. When it is settled that the jurisdiction of the Court in a removal cause is doubtful, all doubt as to what the Court should do is dispelled, and the cause will be remanded. This rule is in harmony with the spirit and design of the act of Congress. Congress has gone as far as it can to diminish the evils beaten party may take the case to the Supreme Court, where it must be reversed for want of jurisdiction, and remanded to the State court. Even the party who removes the case is not bound by his own act, but, if beaten on the merits in the Circuit Court, may appeal to the Supreme Court, and will there be heard to say that the Circuit Court erred in taking jurisdiction of the case, though it did so on his own petition; and after years of expensive litigation the parties to a suit improperly removed from the State court find themselves just where in the Circuit Court after he has prosecuted his suit in that Court successfully, on his being taken into that Court adversely more than six years ago.' "But the Court could not relieve from the hardship, and the judgment had to be reversed for want of jurisdiction, and the cause remanded to the State court. The benefit of a reasonable doubt should never be given to a practice that protracts and fosters litigation and multiplies costs. The sound rule on this subject is stated by Judge Love in Kessinger v. Vannatta, 27 Fed. 890. That learned and experienced Judge said: 666 they were when the cause was removed. Everything done in the case after removal counts for nothing; the case is no nearer an end on its merits than when it was begun. "If the refusal to remand, like the order to remand, settled for all time the question of jurisdiction, and the case was retained for trial on its merits only, there would be more reason for contending that the doubt should be resolved against remanding the case. But, as we have seen, if the case is retained, the question of jurisdiction remains an issue for final determination in the Supreme Court on the appeal of the party beaten on the merits in the Circuit Court. The case of First Nat. Bank of Chicago v. Corbin, also entitled Graves v. Corbin, 132 U. S. 571, 591, 10 Sup. Ct. 196, 33 L. 462, serves to illustrate the injustice and hardship likely to result from resolving doubts in favor of the removability of cases. That case was removed from the State court into the Circuit Court on the petition of the bank, a defendant. Upon final hearing on the merits there was a decree in favor of the plaintiff, and against the bank, and it appealed to the Supreme Court, and in that Court made the point that the Circuit Court acquired no jurisdiction of the cause by the removal on its own petition. Against this inconsistent, and what may justly be termed unconscionable, action of the bank, the plaintiff. Fitzgerald, 160 U. S. 556, 16 Sup. protested, but his protest was in Ct. 389, 40 L. 536. vain. The Court said: "It is suggested that it is a "It is the constant practice of this Court to remand causes brought here from the State courts in cases of doubtful jurisdiction. The reason of this practice is obvious and conclusive. In the first place, the jurisdiction of the State court is unquestionable. It is, at least, concurrent with this Court. But the jurisdiction of this Court depends upon special facts, and it is in the present case, to say the least, doubtful. It is the safer and wiser course to send a cause for trial to a court of unquestionable jurisdiction, rather than retain it here, and go through all the forms of trial, when the jurisdiction is doubtful.'" Fitzgerald v. Missouri Pac. R. Co., 45 Fed. 812, approved by Supreme Court of the United States, Missouri Pac. R. Co. For other authorities upon the subject of the reversal of judgments hardship to the plaintiff to reverse for improper removal, see post his decree for want of jurisdiction | §§ 203, 210. 4 CHAPTER III. SUITS OF A CIVIL NATURE. § 40. "Any suit of a civil nature," of certain classes, "may be removed."—As already shown,2 there can be a removal in those cases and those only, embraced by the statute. Other conditions and limitations prescribed are hereafter noticed.3 These here stated are of a basic character. To determine in favor of the removability of a proceeding from a State court to a Circuit Court of the United States, these questions must be answered in the affirmative: Is it a suit? Is it of a civil nature? 5 § 41. "If a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit." -By using the term "suit" in the removal statutes,2 a very comprehensive one was adopted.3 "In law language, it is the prosecution of some demand in a court of justice." Cohens v. Virginia, 6 Wheat. 264, 407, 5 L. 257, 292. "To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit, is, ac 8" The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of pro-cording to the common acceptaceeding may be various." Weston v. Charleston, 2 Pet. 449, 7 L. 481. "The word 'suit' applies tion of language, to continue that demand." Cohens v. Virginia, 6 Wheat. 264, 408, 5 L. 257, 292. The Constitution uses the term "case," and the codes of some States "action" and 66 cause in the same or nearly the same sense. Case, cause, suit and action are synonymous words.5 § 42. Substance, rather than form, determines whether a proceeding is a suit.-If any proceeding in a State court is in substance a suit, it will be treated as such for the purpose of removal. No formal disguise can prevent the removal of a suit from a State court to the proper United States Circuit Court.2 Mere forms of procedure vary in different 1" The character of the cases themselves is always open to exam "The term 'action' under the statute of Iowa, is identical with the word suit' in the act of Con-ination for the purpose of detergress." Re Iowa & Minn. Const. Co., 6 Fed. 799, 2 McCr. 178. "In any legal sense, 'action,' 'suit,' and 'cause' are convertible terms." Ex parte Milligan, 4 Wall. 2, 112, 18 L. 281, 293, quoted and approved in King v. McLean Asylum, 21 U. S. App. 481, 12 C. C. A. 145, 64 Fed. 331, 26 L. R. A. 784. See further discussions in Interstate Commerce Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. 1125, 38 L. 1047; mining whether, retione materiæ, the Courts of the United States are incompetent to take jurisdiction thereof. State rules on the subject cannot deprive them of it." Barrow v. Hunton, 99 U. S. 80, 25 L. 407; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. 870; Lackawanna Coal & Iron Co. v. Bates, 56 Fed. 737. 2"That a State, by simply prescribing a peculiar form of procedure for its own courts, may, in any case, divest the rightful jurisdiction of those of the United States, is a doctrine to which I am wholly unable to assent, and which Smith v. Adams, 130 U. S. 167, does not appear to be supported by 9 Sup. Ct. 566, 32 L. 895; any precedent or authority." Wil Ward v. Congress Const. Co., 39 son v. Smith, 66 Fed. 81. C. C. A. 669, 99 Fed. 598; Very similar language might be In re Stutsman County, 88 Fed. quoted from 337; In re Stutsman County, 88 Fed. In re Pacific Railway Commis-337; sion, 32 Fed. 241, 255-6, 12 Sawy. 559; San Mateo County v. Southern Pac. R. Co., 13 Fed. 145, 7 Sawy. 517; Connor v. Scott, 6 Fed. Cas. 313, 4 Dill. 242, 3 Cent. Law J. 305. In re The Jarnecke Ditch, 69 Fed. 161, 163; Colorado Midland Ry. Co. v. Jones, 29 Fed. 193, 196; Wheeler v. Bates, 29 Fed. Cas. 880, 6 Biss. 88, 6 Chi. Leg. News 413. |