are not nullified by the removal; they remain in force unless regularly modified or set aside by the Circuit Court.5 The "The present statute is very plain | by the supreme court of the State, on this point, ante §§ 9, 11, and the it follows that the Circuit Court decisions, except in one respect was right in holding that the apmentioned in the latter paragraph | pellant was concluded by that deof this note, are in harmony with it. In French v. Hay, 22 Wall. 238, 22 L. 854, the Supreme Court said: "In this condition of things the case went to the Circuit Court of the United States. That Court possessed the same power in the case as the State court while the case was before it no more and no less. It certainly did not sit as a Court of error or appeal with jurisdiction to reverse the final decree of the State court made under the original bill. That would be contrary to the intent and meaning of the act of Congress under which the removal was made." So the Supreme Court said in Duncan v. Gegan, 101 U. S. 810, 25 L. 875: cree." Many other cases may be cited to the same effect: Phenix Ins. Co. v. Charleston Brooks v. Farwell, 4 Fed. 166, 1 Boatmen's Sav. Bank v. Wagenspack, 12 Fed. 66, 4 Woods 130; Loomis v. Carrington, 18 Fed. 97; Phelps v. Canada Cent. R. Co., 19 Fed. 801, 20 Blatchf. 450; Cleaver v. Traders' Ins. Co., 40 Fed. 711; Bragdon v. Perkins-Campbell Co., 82 Fed. 338; Eureka & K. R. R. Co. v. California & N. Ry. Co., 103 Fed. 897; Bills v. New Orleans, St. L. & C. R. Co., 3 Fed. Cas. 386, 13 Blatchf 227; Garden City Mfg. Co. v. Smith, 9 Fed. Cas. 1153, 1 Dill. 305; Williams Mower & R. Co. v. Raynor, 30 Fed. Cas. 3, 7 Biss. 245. The power of the Circuit Court to set aside an order of a State court made before removal is discussed but not decided in "The transfer of the suit from the State court to the Circuit Court did not vacate what had been done in the State court previous to the removal. The Circuit Court, when a transfer is effected, takes the case in the condition it was when the State court was deprived of its jurisdiction. The Circuit Court has no more power over what was done before the removal than the State court would have had if the suit had remained there. It takes the case up where the State court left it off. "As it is apparent that the ques-service of process by publication tions presented by the new pleadings in the Circuit Court are in all respects the same as those settled Porter Land & W. Co. v. Baskin, 43 Fed. 323, the Federal Court arriving at the same conclusion as the State court upon the merits of a motion to dismiss a suit on the ground that could not be had in a suit to establish a trust in land-both courts holding the service valid. Circuit Court begins where the State court quit. It may make such modifications of prior orders as the State court In the head-note to authority after a removal, and after removed under the act of 1789, by signing it. ante § 7, note 3, it is said: "On the removal of a cause an injunction granted by the State court falls." Arnold v. Kearney, 29 Fed. 820. Diamond Plate Glass Co. v. The opinion of the Court states that such was the argument of counsel and that the Court "does not undertake to decide how far this is true." Other cases ex-osition of its general agent while pressly decide that this was true under that act. where defendant had taken the dep the suit was pending in the State Hatch v. Chicago, R. I. & P. R. Co., 11 Fed. Cas. 799, 6 Blatchf. 105; McLeod v. Duncan, 16 Fed. Cas. examination, that the order for 298, 5 McLean 242; such cross-examination was not Burts v. Loyd, 45 Ga. 104, 12 vacated by the removal of the suit Am. R. 574. Compare Northwestern Distilling Co. v. Corse, 18 Fed. Cas. 392, 4 Biss. 514, decided under what is now Rev. St., § 643. This defect in the act of 1789 is expressly remedied by the act of 1875, ante § 9. to the Circuit Court of the United It was held in Fogg v. Fisk, 19 Fed. 235, 22 The removal of an injunction suit to a Circuit Court of the United States does not carry with it crim-removal; that the examination, inal proceedings begun in the State court for contempt of such State court in violating an order of injunction granted by it. Kirk v. Milwaukee Dust Col. Mfg. Co., 26 Fed. 501. It has been decided, but no reason is given for the decision, that where a deposition has been taken in short-hand while a suit was pending in the State court, the United States Circuit Court has no partly had before removal, should Ex parte Fisk, 113 U. S. 713, 5 Congress attempted to remedy Post § 208 and notes 21, 22. 36.1407 might have made had the suit remained therein. It may hear and determine, after the removal, any motion, demurrer, or unsettled matter, pending in the cause at the time of the removal. It may stay the suit of the plaintiff until he shall 6 Cases quoted or cited in preced- orders and rulings in the State ing note; court remain in full force until they are changed or set aside in the Circuit Court. But the Circuit Court, certainly, has the same power over them-the same juris Atlantic Lumber Co. v. L. Bucki & Son Lumber Co., 63 U. S. App. 382, and 384, 35 C. C. A. 59, 92 Fed. 864; Portland v. Oregonian Ry. Co., 6 diction to modify them or set them Fed. 321, 7 Sawy. 122; Werthein v. Continental Ry. & Tr. Co., 11 Fed. 689, 20 Blatchf. 508; New Orleans City R. Co. v. Crescent City R. Co., 12 Fed. 308; aside that the State court would have had if the cause had not been removed. Interlocutory orders made in the State court clearly do not by virtue of their removal to Leo v. Union Pac. Ry. Co., 17 the United States Circuit Court, Fed. 273; Sharp v. Whiteside, 19 Fed. 156; McHenry v. New York, P. & O. R. Co., 25 Fed. 114; receive any such additional force and effect as to preclude the Circuit Court from doing with them what the State court might have done if the cause had remained there." A decision of the supreme or Davis v. St. Louis & S. F. Ry. Co., 25 Fed. 786, quoted in note 1 to this section; Bryant v. Thompson, 27 Fed. 881, other appellate court of the State quoted below; Allmark v. Platte S. S. Co., 76 establish the law of the case and to Fed. 615; prior to a removal has been held to be binding on the Federal Courts upon a removal; but as it is now too late to remove a suit over objection after a trial and reversal, Akerly v. Vilas, 1 Fed. Cas. 259, 3 Biss. 332, 5 Chi. Leg. News 73, 16 Int. Rev. Rec. 154; Carrington v. Florida R. Co., 5 these cases are obsolescent: Fed. Cas. 158, 9 Blatchf. 468. Duncan v. Gegan, 101 U. S. 810, 25 L. 875, quoted note 5 to this section; "The case, when removed from the State court to the Circuit Court of the United States, stands in the latter Court as it stood in the former, before the removal." Gier v. Gregg, 10 Fed. Cas. 339, 4 McLean 202. In Bryant v. Thompson, supra, Houston, 44 Fed. 449; the Court said, p. 882: Williams v. Conger, 125 U. S. 397, 8 Sup. Ct. 933, 31 L. 778; "Now, when a cause is removed from the State court to the United States Circuit Court it stands in the latter just as it stood in the State court before removal. All Cleaver v. Traders' Ins. Co., 40 Fed. 711; Lookout Mountain R. Co. v. Farmers' Loan & T. Co. v. Chicago, P. & S. W. R. Co., 8 Fed. Cas. 1043, 9 Biss. 133, 12 Chi. Leg. News 65, 25 Int. Rev. Rec. 360. 7 Sutro v. Simpson, 14 Fed. 370, 4 McCr. 276; pay the costs of a former suit commenced in the State court and dismissed before verdict.8 Under the act of 1789,9 the decisions were conflicting as to whether an attachment of property in a State court was dissolved by a removal of the cause to a United States Circuit Court, when the writ of attachment was not the original process in the cause.10 The language of the present act11 is more specific, and expressly enacts that "any attachment or sequestration of the goods or estate of the defendant" shall have the same force in the Circuit Court of the United States that it had in the State court, and that "all bonds, undertakings or security given by either party" shall remain effective notwithstanding such removal.12 The plain purpose of these provisions is to invest the Circuit Court of the United States to which a cause is removed with power to administer justice as fully and effectively as the State court could do if the suit had remained therein, and to preserve the rights of all parties, both plaintiff and defendant, existing at the time of the removal.13 Milligan v. Lalance & G. Manuf'g Ante § 7, note 3. Ramsey v. Coolbaugh, 13 Iowa 164, a delivery bond given in a State court by the defendant with surety to obtain the release of attached property was held not to be avoided 10 Holding the attachment dis- by a removal under the act of 1789; solved: New England Screw Co. v. Bliven, 18 Fed. Cas. 69, 3 Blatchf. 240. but the substitution of a new bond in the Federal Court by order of both the State and Federal Courts, and without objection by the plain Holding the attachment not dis- tiff, was held to release the surety solved: on the bond given in the State court. Barney v. Globe Bank, 2 Fed. 12 It is doubtful if some classes of bonds given in a State court were valid after removal, under prior legislation. 13 Where an injunction suit is begun in a State court, and a bond is given to secure a temporary injunction, and the cause is then removed to a Circuit Court of the United States and is there tried and determined in favor of the defendants, an action may be main Rigg v. Parsons, 29 W. Va. 522, 2 tained upon the injunction bond S. E. 81. In for damages, the bond remaining valid notwithstanding the removal. Upon a removal the res follows the case.14 An attachment "The order of the Muhlenberg | arrest in a suit for a debt continues valid after removal. circuit court transferring the action in which the bond was executed to the United States Circuit Court must be presumed to have been regularly made, and the jurisdiction of the latter Court to try the action is not, nor can it be, called in question in this action; and consequently the liability of the sureties is precisely the same as if the injunction had been dissolved by the first named court." Alexander v. Gish (Ky.), 9 S. W. 801, 10 Ky. Law Rep. 989, "not to be officially reported." West Virginia v. Peck, 32 W. Va. 606, 9 S. E. 919. 14 In Friedman v. Israel, 26 Fed. 801, 802, the Court said: "Logically, it must follow from the language of that act, as well as from the frequent interpretations the United States Courts have been called on to give to that act, that a suit rightfully removed is all out of the State court, and that all of it the record and res-is in the Circuit Court, and that the Circuit Court and its officers are then charged with the duty of exercising all the conservatory writs and processes necessary to maintain its But a reversal of the judgment of the Circuit Court by the Supreme Court of the United States for want of jurisdiction, with an order to remand the suit to the State court from which it was re-jurisdiction, and make the judgmoved, completely nullifies the judgment of the Circuit Court dissolving the injunction and constitutes a complete defence to the action on the bond. Alexander v. Gish (Ky.), 17 S. W. 287, 13 Ky. Law Rep. 515, "not to be officially reported." A bond given by a defendant in a State court to procure the dissolution of a writ of estrepement may be enforced by the plaintiff after recovering a judgment in the action in a Circuit Court of the United States upon its removal thereto. Prescott v. Adams, 60 U. S. App. 423, 32 C. C. A. 255, 89 Fed. 474. A cost bond executed in a State court remains valid after a removal of the suit in which it was executed to a Federal Court. ment of the Court, in relation to the parties and the res,-whatever the judgment may be,-effectual." Other cases are those cited in next two notes; Second Nat. Bank v. New York Silk Manuf'g Co., 11 Fed. 532; s. c., New York Silk Manuf'g Co. v. Second Nat. Bank, 10 Fed. 204, sub nom. Second Nat. Bank v. New York Silk Manuf'g Co., 21 Fed. Cas. 960, 13 Reporter 355. Compare, as to the limits of this doctrine, Smith v. Schwed, 9 Fed. 483. After defendant has removed a suit from a State court to a Circuit Court of the United States and thereby invested that Court with complete jurisdiction of it, he has no right to an appeal or writ of error to have an appellate court of the State review a ruling of the A bond executed by a defend-State court of original jurisdiction ant to obtain his release from refusing to quash an attachment, Post § 209, and note 6. |