A suit between plaintiffs who are citizens of different states, and a defendant which is a corporation of a state other than the in which the suit is brought, is not removable on the ground of diversity of citizenship un der section 28, of the Judicial Code ; Puget Sound S. M. Works v. R. Co., 195 Fed. 350.
Application for removal must- be before the plea is due ; and this means at or be fore the time when the defendant is re quired by the laws of the state to answer or plead to the merits; Wilson v. R. Co., 82 Fed. 15 ; and the time is not extended by de lay in taking judgment or default for want of plea ; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963 ; nor can it be by stipulation of the parties or by the discretionary action of the judge in a particular case; Fox v. R. Co., 80 Fed. 945.
When the petition and bond are filed, the state court is without authority to proceed further ; Marshall v. Holmes, 141 U. S. 589, 12 Sup. Ct. 62, 35 L. Ed. 870.
The court will not permit any fraud on the law either to prevent removal or to secure it, and the joinder of a party for this purpose will not be allowed to prevent a removal; Crawford v. R. Co., 130 Fed. 395 ; Kelly v. Ry. Co.,• 122 Fed. 286 ; but where there is a joint cause of action against both defendants, the cause cannot be removed even though to prevent it was the real purpose of the join der ; Armstrong v. R. Co., 192 Fed. 608; Evansberg v. Insurance Stove R. & F. Co., 168 Fed. 1001; and where, under the settled law of the state, the defendants were jointly liable it will not be treated as a fraudulent joinder ; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521.
All the facts essential to federal jurisdic tion must appear on the record ; Tod v. Ry. Co., 65 Fed. 145, 12 C. C. A. 521, 22 U. S. App. 707. They must appear from the plain tiff's statement where that is the ground of removal, and cannot be supplied by statement in the petition for removal or subsequent pleadings ; Postal Telegraph Cable Co. v. Alabama, 155 U. S. 482, 15 Sup. Ct. 192, 39 L. Ed. 231; Oregon Short Line & U. N. Ry. Co. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869, 40 L. Ed. 1048. A prima facie case must be shown by the record ; Stone v. S. Carolina, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962.
If a cause removed is not remanded when it might be, and proceeds without objection to judgment, the latter remains in force until vacated ; Des Moines Nay. & R. Co. v. Home stead Co., 123 U. S. 552, 8 Sup. Ct. 217, 31 L.• Ed. 202. One who petitions for or con sents to removal cannot afterwards object to it as not asked for in time ; Connell v. Smil ey, 156 U. S. 335, 15 Sup. Ct. 353, 39 L. Ed. 443. If a cause is removed and the circuit court decides it has no jurisdiction, it re •ends and does not dismiss; Cates v. Allen,
149 U. S. 452, 13 Sup. Ct. 883, 977, 37 L. Ed. 804.
A state court may take cognizance of a suit brought by the state in its own courts against citizens of other states, subject to the right of the defendant to have such suit removed and subject also to the appellate jurisdiction of the supreme court of the United States; Plaqueruines Tropical Fruit Co. v. Henderson, 170 U. S. 511, 18 Sup. Ct. 685, 42 L. Ed. 1126.
Where the state court denies the motion for removal but the record is nevertheless filed in the circuit court, which proceeds to a hearing and then remands, the order refus ing removal works no prejudice, and the er ro•, if any, is immaterial; Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 16 Sup. Ct. 389, 40 L. Ed. 536.
Actual removal subjects the defendants to the jurisdiction of the federal court and is a waiver of privileges claimed by pleas in abatement, but the mere filing a petition in the state court is not a waiver of exception to its jurisdiction ; Hinds v. Keith, 57 Fed. 10, 6 C. C. A. 231, 13 U. S. App. 222.
An order of the circuit court remanding a case to a state court was, at the time of the enactment of the Judicial Code, not re viewable by the supreme court by any direct proceeding ; Powers v. R. Co., 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. And such order was held not reviewable prior to the act of March 3, 1875, because such order was not a,final judgment or decree, but by that act it was expressly made reviewable. By the act of March 3, 1887, however, it was provided that no appeal or writ of error from the decision of the circuit court re manding the case should be allowed, and un der this state of the law it was held that the action of the circuit court was final ; Mis souri P. R. Co. v. Fitzgerald, 160 U. S. 556, 580, 16 Sup. Ct. 389, 40 L. Ed. 536, followed in McLaughlin Bros. v. Hallowell, 228 U. S. 278, 33 Sup. Ct. 465, 57 L. Ed. 835. The Ju dicial Code does not seem to change the con ditions created by the act of 1887, and at all events, inasmuch as the appellate juris diction of both the circuit court of appeals and the supreme court is only from final judgments or decrees, the subject seems to be remitted to the condition in which it was prior to the act of March 3, 1875, as decided in Missouri P. Ry. v. Fitzgerald, supra. In both cases cited it was also held that the order to remand could not be reviewed on ap peal or error from the state court, inasmuch as that court could not be held to have decid ed against a final right when it merely recog nized the decision of the federal court as con clusive and acted upon it. The act of 1887 (re-enacted Aug. 13, 1888) it was held, took away the inherent power of the supreme court to relieve by mandamus when a case, removed from a state court, was improperly remanded ; In re Pennsylvania Co., 137 U.