The Constitution uses the term "case," and the codes of some States "action" and "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

+ Ante § 2.

"The term 'action' under the statute of Iowa, is identical with the word suit' in the act of Congress." Re Iowa & Minn. Const. Co., 6 Fed. 799, 2 McCr. 178.

$ 42.

1 The character of the cases themselves is always open to examination for the purpose of determining whether, retione materiæ, the Courts of the United States are "In any legal sense, 'action,' incompetent to take jurisdiction 'suit,' and ' cause are converti- thereof. State rules on the subble terms." 19 Ex parte Milligan, 4 ject cannot deprive them of it." Wall. 2, 112, 18 L. 281, 293, quoted Barrow v. Hunton, 99 U. S. 80, 25 and approved in King v. McLean L. 407; Marshall v. Holmes, 141 Asylum, 21 U. S. App. 481, 12 C. C. | U. S. 589, 12 Sup. Ct. 62, 35 L. 870 ; A. 145, 64 Fed. 331, 26 L. R. A. Lackawanna Coal & Iron Co. v. 784.

See further discussions in
La Abra Silver Mining Co. v.
United States, 175 U. S. 423, 20
Sup. Ct. 168, 44 L. 223;

Interstate Commerce Commission v. Brimson, 154 U. S. 447, 14 Sup. Ct. 1125, 38 L. 1047;

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.

States, and at different times in the same State; but mere forms are not controlling.3

66

§ 43. A suit must be brought" in a State court before it can be removed to a United States Circuit Court.-The language of the statute is that "any suit," of certain kinds, "which may hereafter be brought, in any State court, may be removed." 1

When is a suit "brought" within the meaning of the statute?

The mere filing of a complaint or petition is not the bringing of a suit. To constitute a suit there must be a service of process upon defendant (though it be irregular) or an appearance by him.2 In the sense of this statute, a suit is not "brought," until process is served or the defendant appears, although it would be considered "brought,” so far as concerns the statute of limitations, when the process went into the hands of the officer for service. Judge Hammond has very carefully considered and discussed the necessary elements of a suit.4

* For example, a proceeding to foreclose a mortgage in the peculiar manner provided by the code of Louisiana,

Fleitas v. Richardson, 147 U. S. 538, 13 Sup. Ct. 429, 37 L. 272,or Pennsylvania,—

is a citizen of another State, and who, if he does not elect to remove, is bound to submit to the jurisdiction of the State court."

This was accurate at the time it was written, but would have to be modified now to include a case in

Black v. Black, 74 Fed. 978,-volving a Federal controversy, and

Re Iowa & M. Construction Co., | ber Co., 80 Fed. 309; s. c., 56 U. S. 6 Fed. 799, 2 McCr. 178;

App. 655, 29 C. C. A. 431, 85 Fed.

Woolridge v. McKenna, 8 Fed. 827.

650.

4"Not only must there be a con

In the first of these cases, it is troversy, but as well always a form said:

"A suit removable from a State court must be a suit regularly commenced by a citizen of the State in which the suit is brought, by process served upon a defendant who

of procedure of some kind, possessing all the necessary elements of a suit' or 'case' in court, the most important of which is, no doubt, that there shall be a tribunal authorized to issue that in

§ 44. There may be a removable "suit," although there is no sufficient cause of action alleged by plaintiff. It is not necessary to make a proceeding in a State court a suit that the bill, complaint, or petition of the plaintiff or complainant shall state facts sufficient to constitute a cause of action against the defendant. Where a right is asserted to invoke the jurisdiction of the State court, the court having general jurisdiction of the subject-matter,—it does not affect the jurisdiction that the damages sought, or other relief prayed, cannot be had in that or any other form of action, upon the facts pleaded. Whether there can be a recovery upon the facts stated, is a question upon the merits, and not one as to the jurisdiction.1 Nor does it affect the removadispensable notice which we call a must at some time concur to estabwrit or process, to bring the par-lish a lawfully constituted 'suit' ties together in the court; and this by which the controversy is to be must be not only sufficient in form, adjudged, either in the court issuand in fact, but in legal and tech- ing the process or in any tribunal nical effect, to constitute a 'suit' to which it may be removed for or 'case," which can only be when judgment." Fidelity Trust Co. v. the tribunal undertaking the initi-Gill Car Co., 25 Fed. 737. atory steps is duly authorized to do that thing and proceed with the matter of adjudging between the parties, either for itself or by transferring that function to some other tribunal, likewise duly authorized to proceed to judgment. Whatever may be said as to the proper definition of the term 'suit' or 'case' in other respects, in this process of inaugurating the procedure by which the controversy is to be judicially determined, there must be, ex necessitate rei, a court having power to set in motion the machinery of the law, and this we call For the status of cases after reits jurisdiction over the subject-moval in which the process has matter; while that effectual serv-been irregular or the service deice of its notice which is legally fective, see post § 207. potential to bring the parties before itself, or whatever proper tribunal may proceed further in the progress of the 'case,' we call its jurisdiction over the parties. Both

While this quotation is in general very accurate, subsequent decisions of the Supreme Court have adjudged that there may be a "suit" within the meaning of the removal act, although the service of notice has not been "effectual" or "legally potential," but irregular and voidable.

Goldey v. Morning News, 156 U. S. 518, 15 Sup. Ct. 559, 39 L. 517;

Wabash W. Ry. Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. 431;

Cases cited post § 206.

§ 44.

1 Pacific Express Co. v. McDowell, 140 U. S. 692, 11 Sup. Ct. 1025, 35 L. 757;

St. Louis & San Francisco R. Co.

If a

bility of a suit that there can be no recovery therein. suit begun in a State court having jurisdiction is one of a class of which the United States Circuit Court can take cognizance, it may be removed thereto; and it will be for that Court to determine whether, under the pleadings and proof, the plaintiff is entitled to recover.2 There may, indeed, be a suit in a court, although such court have no jurisdiction of the subject-matter of the action.3

§ 45. Original suits are removable, but not ancillary ones. While the removal statute uses the general term "suit," the word is used in the sense of original suit. A supplemental, ancillary, auxiliary, or dependent proceeding, is not a suit, within the meaning of the statute. It is but an incident of a suit, or a portion of a suit. Jurisdiction of the incidents of a suit remains in the court possessing jurisdiction of the suit. Such a proceeding begun in a State court is not removable, apart from the suit upon which it is dependent. A suit cannot be thus split up, leaving the main case in the State court and transferring the dependent parts to the Federal Court.1

v. McBride, 141 U. S. 127, 11 Sup. | occupying claimant law; an interCt. 982, 35 L. 659;

Schunk v. Moline, Milburn & Stoddart Co., 147 U. S. 500, 13 Sup. Ct. 416, 37 L. 255;

Hax v. Caspar, 31 Fed. 499, 501; Evans v. Felton, 96 Fed. 176; Broadway Ins. Co. v. Chicago G. W. R. Co., 101 Fed. 507.

vention in a receivership of an insolvent corporation; a proceeding in equity in aid or in defense of an action or judgment at law; a statutory contest as to the ownership of property taken in execution; an action for the nullity of a judgment for error in the form of

2 Marshall v. Holmes, 141 U. S. proceeding under the Louisiana 589, 12 Sup. Ct. 62, 35 L. 870;

Hayward v. Nordberg Mfg. Co., 54 U. S. App. 639, 29 C. C. A. 438, 85 Fed. 4.

But compare post § 84, where decisions are cited which come very near conflicting with this line of

cases.

8 Post § 69. $ 45.

1 The cases decide that an attachment proceeding; a garnishment proceeding; a petition under an

code, equivalent in substance to "a motion to set aside the judgment for irregularity, or a writ of error coram vobis," in the common-law practice; or any other proceeding substantially like these, cannot be removed, apart from the main action.

Brooks v. Clark, 119 U. S. 502, 7 Sup. Ct. 301, 30 L. 482;

Barrow v. Hunton, 99 U. S. 80, 25 L. 407; s. c., sub nom. Goodrich v. Hunton, 29 La. Ann. 372, fol

An original suit, though it may, in a sense, grow out of a former suit in a State court, may be begun in a United States Circuit Court, or be removed thereto from a State court,— the necessary conditions existing.2

Where a plaintiff brings a suit by attachment in a State court, the

First Nat. Bank v. Turnbull, 16 sum claimed by him being large

Kelly Maus & Co. v. Sioux Nat. his attachment, the jurisdictional Bank, 81 Fed. 3;

limitation of the statute is said to have reference to the sum in dispute

Wolcott v. Aspen M. & S. Co., 34 between the original plaintiff in attachment and the defendant. It is

Fed. 821; Richmond & D. R. Co. v. Findley, held "that the right of applying 32 Fed. 641;

Hospes v. Northwestern M. & is a mere incident to the principal Car Co., 22 Fed. 565;

suit, and that the court having acquired jurisdiction over the principal suit, necessarily exercises it over the incident."

New York Silk Manuf'g Co. v. Second Nat. Bank, 10 Fed. 204, sub

Buell v. Cincinnati, E. & Q. C. nom. Second Nat. Bank v. New

York Silk Manuf'g Co., 21 Fed.

Pratt v. Albright, 9 Fed. 634, 10 Cas. 960, 13 Reporter 355.

Re Iowa & Minn. Const. Co., 6 a former suit is not removable from