S. 451, 11 Sup. Ct. 143, 34 L. Ed. 741. The defendant may waive defects in removal proceedings if jurisdiction actually exists, and if he does so, the court will not of its own motion inquire into the regularity of the proceedings ; Mackay v. Development Co., 229 U. S. 173, 33 Sup. Ct. 638, 57 L. Ed. 1138 ; but when the state court asserts jurisdiction after a proper application for removal, the question is not waived by the party entitled to the removal by reason of his appearing and contesting the matter in dispute ; Home L. Ins. Co. v. Dunn, 19 Wall. (U. S.) 214, 22 L. Ed. 68 ; Meyer v. Const. Co., 100 U. S. 457, 25 L Ed. 593 ; National Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, 27 L. Ed. 87. He may take an appeal, should the decision be against him, to the highest court of the state, save the question of removal on the record, and failing there, to the sh preme court of the United States ; Oakley v. Goodnow, 118 U. S. 43, 6 Sup. Ct. 944, 30 L. Ed. 61; Baltimore & 0. R. Co. v. Koontz, 104 U. S. 5, 26 L. Ed. 643. In the event of his obtaining a decision in favor of removal there, the judgment of the state court will be reversed and an order made to transfer the case to the circuit court for trial on the mer its ; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524. If a cause be improperly removed and the circuit court entertains jurisdiction improperly, its judgment will be reversed by the supreme court with directions to the cir cuit court to remand the same to the state court ;0 Knapp v. R. Co., 20 Wall. (U. S.) 117, 22 L. Ed. 328.
The denial by a state court of an applica tion to amend a petition for removal is not a denial of a right secured by the constitu tion of the United States ; Stevens's Adm'r v. Nichols, 157 U. S. 370, 15 Sup. Ct. 640, 39 L. Ed. 736.
When a suit over which a state court has full jurisdiction in equity is removed to a cir cuit court on the ground of diverse citizenship, and it appears that the courts of the United States have no jurisdiction in equity over such a controversy, the cause should be re manded to the state court, instead of dismiss ing it for want of jurisdiction ; Cates v. Al len, 149 U. S. 451, 13 Sup. Ct. 883, 977, 37 L. Ed. 804.
A bill in equity to reach partnership prop erty and set aside judgments confessed by fraud, presented a single controversy as to all defendants and could not be removed by one for diversity of citizenship ; Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. Ed. 462; so also of a bill to prevent the pay ment of county bonds alleged to be invalid where some bondholders were citizens of the same state with the plaintiffs and others who sought to remove of a different state ; Brown v. Trousdale, 138 U. S. 389, 11 Sup. Ct. 308, 34 L. Ed. 987 ; so of a bill to recover posses sion of town bonds where the bailee Is a necessary party and a citizen of the same state; Wilson v. Oswego Tp., 151 U. S. 56, 14
Sup. Ct. 259, 38 L. Ed. 70. One of two corpo rations sued jointly in a state court for tort, though pleading severally, cannot remove the case on the ground of a separable controver sy; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203, 33 L. Ed. 474; so of a complaint against a corporation and its agents individually for damages for pol luting a stream, and seeking a remedy against them jointly, though they answer separately with separate defences ; Plymouth G. Min. Co. v. Canal Co., 118 U. S. 264, 6 Sup. Ct. 1034, 30 L. Ed. 232. To remove upon the ground of separable controversy, the case must be capable of separation into two or more independent suits, one of which is, whol ly between citizens of different states in the sense that it may be fully determined as be tween them without the presence of the other parties to the record; Barth v. Coler, 60 Fed. 466, 9 C. C. A. 81, 19 U. S. App. 646 ; Mit chell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442 ; see Merchants' Cot= ton Press & Storage Co. v. Ins. Co., 151 id. 368, 14 Sup. Ct. 367, 38 L. Ed. 195 ; but sep arate defences do not create separate contro versies within the meaning of the removal act ; Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. Ed. 462 ; Little v. Giles, 118 U. S. 596, 7 Sup. Ct. 32, 30 L. Ed. 269; and a defendant cannot make an action several which plaintiff elects to make joint; Little v. Giles, 118 U. S. 506, 7 Sup. Ct. 32, 30 L. Ed. 269; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528.
The right of removal under the Judicial Code, § 31, formerly R. S. § 641, is author ized only upon petition setting forth infrac tions of the fourteenth amendment to the constitution previous to the trial and final hearing of the cause, and has no applicabil ity to those occurring after the trial or final hearing has commenced. This section was drawn only with reference to state action, and has no reference to individual viola tions of rights ; Virginia v. Rives, 100 U. S. 313, 25 L. Ed. 667. The right of removal un der R. S. § 641, exists only in the special cases mentioned in it, and in the absence of the denial or inability to enforce in the judi cial tribunals of the state the equal civil rights of citizens, does not embrace cases in which a right is denied by judicial action during trial, or in the sentence or mode of its execution ; Gibson v. Mississippi, 162 U. S. 565, 16 Sup. Ct. 904, 40 L. Ed. 1075, where it was held, following Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567, that a removal was not authorized by the exclusion of negroes because of their race from service on grand juries.