A suit cannot be removed on the ground of prejudice or local influence, unless all the opposing parties are citizens of the state in which suit was brought, which state must also be other than that of which the peti tioners are citizens ; Cambria Iron Co. v. Ashburn, 118 U. S. 54, 6 Sup. Ct. 929, 30 L. Ed. 60 ; or under the act of 1887, where there is no separable controversy, and in such case the petition and affidavit must show facts, not mere conclusions ; P. Schwenk & Co. v. Strang, 59 Fed. 209, 8 C. C. A. 92, 19 U. S. App. 300. Whether the controversy is sepa rable will be determined from the allegations of the bill ; Graves v. Corbin, 132 U. S. 571, 10 Sup. Ct. 196, 33 L. Ed. 462 ; and such case may be removed by the defendant having the separable controversy ; Chicago, R. 1. & P. Ry. Co. v. Martin, 178 U. S. 245, 20 Sup. Ct. 854, 44 L. Ed. 1055. But one of several tort feasors cannot remove on the ground of a separable controversy ; Chesapeake & 0. Ry. Co. v. Dixon, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121.
If the petition is filed by the final bearing it is in time ; Schraeder Min. Co. v. Packer, 129 U. S. 688, 9 Sup. Ct. 385, 32 L. Ed. 760. The motion cannot be made ex parte; Schwenk & Co. v. Strang, 59 Fed. 209, 8 C. C. A. 92 ; Lawson v. R. Co., 112 N. C. 396, 17 S. E. 169. The application is too late aft er a third trial in the state court; Fisk v. Henarie, 142 U. S. 459, 12 Sup. Ct. 207, 35 L. Ed. 1080 ; it may be at any time before the first trial ; In re Cilley, 58 Fed. 980 ; De troit v. Ry. Co., 54 Fed. 7. The matter in dispute in a case removed for prejudice, etc.. must exceed the jurisdictional amount ; In re Pennsylvania Co., 137 U. S. 451, 11 Sup. Ct. 141, S4 L. Ed. 738 ; Tod v. Ry. Co., 65 Fed. 145, 12 C. C. A. 521, 22 U. S. App. 707 ; Bierbower v. Miller, 30 Neb. 161; though it was at first a matter of some controversy whether the jurisdictional limit of amount applied to these cases, and there were de cisions that it did not; Fales v. Ry. Co., 32 Fed. 673 ; McDermott v. Ry. Co., 38 Fed. 529, 3 L. R. A. 455 ; Frishman v. Ins. Co., 41 Fed. 449. In such case the defendant should ob tain an order from the federal court for the removal, file that order in the state court, and take from it a transcript which should be filed in the federal court ; Pennsylvania Co. v. Bender, 148 U. S. 255, 13 Sup. Ct. 591, 37 L. Ed. 441. All issues of fact upon petition for removal for prejudice or local influence must be tried in the circuit court ; Burling ton, C. R. & N. Ry. Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 L. Ed. 1159.
In cases under R. S. § 643, the jurisdiction of the state court is taken away only after the petition for removal is flied in the circuit court and a writ of certiorari or of habeas corpus cum cause issued and served ; Vir ginia v. Paul, 148 U. S. 107, 13 Sup. Ct. 536,
37 L. Ed. 386.
The jurisdiction of the federal court must rest on that of the state court from which it was removed ; Zikos v. R. & Nay. Co., 179 Fed. 893 ; and hence by removal the federal court cannot acquire jurisdiction of a cause of which the state court was without it; H. J. Darnell, Inc., v. R. Co., 190 Fed. 656 ; as where the action was to enforce rights under the interstate commerce acts, the state court, being without jurisdiction of the subject matter, the federal court could not acquire it by removal; Auracher v. R. Co., 102 Fed. 1; Sheldon v. R. Co., 105 Fed. 785; that the state law requires questions of law and fact involved to he brought into a state court by appeal instead of by process does not affect the right of removal ; Terre Haute v. R. Co., 106 Fed. 545.
To be removable the cause must be one of which the federal court might have exercised original jurisdiction ; Ex parte Wisner, 203 U. S. 449, 457, 27 Sup. Ct. 150, 51 L. Ed. 264 ; In re Winn, 218 U. S. 458, 29 Sup. Ct. 515, 53 L. Ed. 873; Canary Oil Co. v. Asphalt & Rtibber Co., 182 Fed. 663 ; Anderson v. Sharp, 189 Fed. 247 ; Younts v. Tel. & Tel. Co., 192 Fed. 200 ; Waterman v. Ry. Co., 199 Fed. 667 ; but though the action was not original ly cognizable in the federal courts, controver sies therein may arise between the parties which would present grounds for removal; West Virginia v. King, 11`2 Fed. 369.
Proceedings in a probate court to deter mine whether the property of a deceased person is separate or community property, cannot be removed to a federal court, though the opposing parties are citizens of different states. The federal courts have no jurisdic tion of proceedings for the administration of decedent's estates, either original or ,by re moval ; Clark v. Guy, 114 Fed. 783; and see EXECUTORS AND ADMINISTRATORS; and they will not interfere with the custody of the es tate of a deceased person by the state probate court in which proceedings are pending for administration ; In re Foley, 80 Fed. 949. But a suit for a claim against the estate of a decedent is within its jurisdiction ; Amer. Baptist Home Miss. Soc. v. Stewart, 192 Fed. 976, and is removable although the claim was originally filed in the probate court ; Schneider v. Eldredge, 125 Fed. 638. A suit before a justice of the peace who, under the state constitution, is clothed with judi cial powers, is removable if the other ele ments of jurisdiction concur ; Katz v. Mfg. Co., 150 Fed. 684.