plaintiff cannot, after a removal, so amend his pleading as to change a suit in equity for the cancellation of a contract into an action at law for deceit in procuring such a contract." But that an action at law to recover the arrears of an annuity that had previously accrued may be changed by amendment into a suit in equity to compel specific performance by one who has assumed a contract to pay such annuity, with a decree for the payment of the arrears that accrued prior to its entry, and a direction that the installments subsequently accruing shall also be paid and enforced by periodical judgments at the foot of such decree.8

After a petition for a removal has been duly presented, an amendment bringing in new parties, or the intervention of new parties, whose citizenship is the same as that of the plaintiffs, 10 or whose claims are less than the jurisdictional amount,11 whether such new parties are made plaintiffs, 12 or defendants,13 or altering the original writ in a proper case,14 will not defeat the jurisdiction, even though such new parties file cross-bills against others of the defendants and strangers to the suit, whom it is then also necessary to make defendants.15 It has been held

7 Blalock v. Equitable Life Assur. Soc'y, 73 Fed. 655.

8 Dancel v. Goodyear Shoe Machinery Co., 137 Fed. 157, C. C. A., 119 Fed. 692; certiorari denied, 202 U. S. 619, 50 L. ed. 1174.

9 Stewart v. Dunham, 115 U. S. 61, 64, 29 L. ed. 329, 330; Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714, 29 L. ed. 888; Probst v. Cowen, 91 Fed. 929. Contra, Fisk v. Union Pac. R. Co., Fed. Cas. No. 4,829 (8 Blatchf. 299).

10 Stewart v. Dunham, 115 U. S. 61, 5 Sup. Ct. 1163, 29 L. ed. 329; Graham v. Boston, H. & E. R. Co., 14 Fed. 753; Clarke V. Eureka County Bank, 116 Fed. 534. But see Ward v. Arredondo, Fed. Cas. No. 17,148 (1 Paine 410).

11 Handley v. Stutz, 137 U. S. 366, 11 Sup. Ct. 117, 34 L. ed. 706; New Fed. Prac. Vol. III-55

York Silk Mfg. Co. v. Second Nat.
Bank, 10 Fed. 204; National Bank
of Commerce v. Allen, 90 Fed. 545;
Bidwell v. Huff, 103 Fed. 362;
Clarke v. Eureka County Bank, 116
Fed. 534.

12 Stewart v. Dunham, 115 U. S. 61, 5 Sup. Ct. 1163, 29 L. ed. 329; Graham v. Boston, H. & E. R. Co., 14 Fed. 753. But see Forest Oil Co. v. Crawford, 101 Fed. 849, 42 C. C. A. 54.

13 Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714, 29 L. ed. 888.

14 Stone v. Speare, 175 Fed. 584. 15 Iowa Homestead Co. V. Des Moines Nav. & R. Co., 8 Fed. 97 (3 McCrary 95); Lilienthal v. McCormick, 117 Fed. 89, 54 C. C. A. 475. See Jackson & Sharp Co. v. Pearson, 60 Fed. 113.

that, after removal, a cross-bill may be filed setting up matter ancillary to the original suit; although, because the defendant's assignor is a citizen of the same State as complainant, such crossbill could not have been begun in the Federal court as an original suit.16

If, however, the parties added subsequent to the removal were indispensable to the maintenance of the original suit, the case should be remanded after they have been brought in by amendment.17 Where omitted parties, who were entitled to be heard, applied for leave to intervene, the court made an order requiring the plaintiff to amend his bill and make them defendants on pain of remanding the cause to the State court or dismissing it, as the defendants might elect.18

Where the removal was made by one only of the defendants, because of a separable controversy; it was held that, after an amendment dismissing him,19 or a discontinuance as to him,20 or an amendment which left nothing in the case that affected his rights; 21 there should be a remand, even though he had previously been allowed by the State court to intervene.22 A plaintiff, who is a receiver of a State court, is not required to show its authority for such dismissal, before the Federal courts will entertain his motion,23 nor can the dismissal be prevented by a motion made by the defendant, while it is pending, for leave to file an amended answer pleading a set-off.24 A reduction of the amount claimed, when made subsequent to the removal, will not justify a remand,25 unless it is clearly proved that the first claim was intentionally extravagant.

16 Brooks v. Laurent, 98 Fed. 647, 39 C. C. A. 201.

17 Perry v. Clift, 32 Fed. 801. 18 Hunt v. Fisher, 29 Fed. 801, 805.

19 Texas Transportation Co. V. Seeligson, 122 U. S. 519, 30 L. ed. 1150; Youtsey v. Hoffman, 108 Fed. 699; Anderson v. United Realty Co., 222 U. S. 164, 56 L. ed. 144.

20 Texas Transp. Co. v. Seeligson, 122 U. S. 519, 7 Sup. Ct. 1261, 30 L. ed. 1150; Ryan v. Young, Fed. Cas. No. 12,188 (9 Biss. 63); Bacon

An amendment after a motion to remand has been denied is not a submission to the jurisdiction nor a waiver of the right to review the validity of the removal by a writ of error or appeal in the Federal court.26 When the suit has not been properly removed, no amendment subsequent to the proceedings for the removal can give such court jurisdiction nor affect the jurisdiction of the State court.27

Amendments to petitions of removal are previously explained.28

§ 555d. Effect of removal upon previous proceedings in the State court. All orders, attachments, sequestrations, bonds, undertakings, security, and other proceedings, given or taken in the State court before the removal, remain in force until they are set aside, dissolved or modified by the Federal court.1 The Federal court has the same jurisdiction to modify or set aside orders or rulings previously made therein that the State court would have had, if the cause had not been removed. It has been held at Circuit, that, after a removal, a sheriff cannot . amend his return, previously made to the State court; but that the record of the State court showing the time of filing the peti

220); Ladd v. Tudor, Fed. Cas. No. 7,975 (3 Woodb. & M. 326); Roberts v. Nelson, Fed. Cas. No. 11,907, 8 Blatchf. 74 (40 How. Prac. 387); McGinnity v. White, Fed. Cas. No. 8,802 (3 Dill. 350); Zinkeisen v. Hufschmidt, Fed. Cas. No. 18,214; Maine v. Gilman, 11 Fed. 214; Waite v. Phoenix Ins. Co., 62 Fed. 769; Hayward v. Nordberg Mfg. Co., 85 Fed. 4, 29 C. C. A. 438; Peterson v. Chicago, M. & St. P. Ry. Co., 108 Fed. 561; Cumberland Gap Building & Loan Ass'n v. Wells (Georgia), 25 S. E. 246; Louisville & N. R. Co. v. Roehling, 11 Ill. App. (11 Bradw.) 264; Chicago, R. I. & P. Ry. Co. v. Stone & Bronnenberg (Kansas), 79 Pac. 655; Geiger v. Union Mut. Life Ins. Co. (New York), 1 City Ct. R. 237. Contra, Spiers v. Halsted, 74 N. C. 620.

3

26 Guaranty Trust Co. v. McCabe,, C. C. A., 250 Fed. 699.

27 Missouri, K. & T. Ry. Co. v. Chappell, 206 Fed. 688.

28 See $546, supra.

§ 555d. 1 New England Screw Co. v. Bliven, Fed. Cas. No. 10,156 (3 Blatchf. 240); Clarke v. Chase, Fed. Cas. No. 2,845 (Brunner Col. Cas. 638); Barney v. Globe Bank, Fed. Cas. No. 1,031 (15 Blatchf. 107); 18 St. at L., ch. 137, p. 470; quoted supra; Carpenter v. New York & N. H. R. Co. (New York), 11 How. Prac. 481; Martin V. Thompson (South Carolina), 3 McCord 167. 2 Buxton v. Pennsylvania Lumber Co., 221 Fed. 718.

3 Tallman v. Baltimore & O. R. Co., 45 Fed. 156. Contra, Richmond v. Brookings, 48 Fed. 241.

tion and bond may be proved, by the testimony of witnesses, to be erroneous. After removal, the Federal court may hear and decide a motion that was pending undecided in the State court before the petition was filed.5

Where a motion is pending at the time of the removal, it is transferred with the record to the Federal court to be there determined. Where, before a petition and bond for the removal of a cause from a State court was passed upon by that court, a motion was made therein by defendant, which was brought on for hearing in the Federal court; it was held that, by seeking an adjournment of the hearing in the latter court without objecting to the irregularity of the hearing, plaintiff waived such irregularity. When a motion has been denied by the State court, leave to renew it should be obtained before making it in the Federal court.8 Ordinarily, when the State court has acted within its jurisdiction, such leave will not be granted unless such a showing is made as would justify an appeal or a rehearing under the State practice. When, at the time of a removal, a motion was pending to resettle an order previously. made, the Federal court entertained the application but refused to review the decision upon which that order had been entered.10 Upon a motion to dismiss, made before the removal, when the defendant had acquired the right to a dismissal under the State practice; it was held that the motion should be granted, although the practice of the Federal court would not

4 Stephens v. St. Louis & S. F. R. Co., 47 Fed. 530.

5 Mannington v. Hocking Valley Ry. Co., 183 Fed. 133, holding that an oral opinion of a State judge sustaining a motion, when no order had been entered upon the same, was not an adjudication which bound the Federal court.

6 Bryce v. Southern Ry. Co., 129 Fed. 966.

7 Kinne v. Lant, 68 Fed. 436. 8 Carrington v. Florida R. Co., Fed. Cas. No. 2,448 (9 Blatchf. 468); New Orleans, M. & C. R. Co. v. New Orleans, 14 Fed. 373; Loomis

v. Carrington, 18 Fed. 97; Bryant v. Thompson, 27 Fed. 881; Allmark v. Platte S. S. Co., 76 Fed. 615; Denison v. Shawmut Min. Co., 124 Fed. 860; Guernsey v. Cross, 153 Fed. 827. See Remington v. Central Pac. R. R. Co., 198 U. S. 95, 99, 49 L. ed. 959, 963; Carrington v. Florida R. Co., 9 Blatchf. 468.

9 Allmark v. Platte S. S. Co., 76 Fed. 615; Denison v. Shawmut Min. Co., 124 Fed. 860.

10 Milligan v. Lalance & G. Mfg. Co., 17 Fed. 465, 21 Blatchf. 407 (an order of a general term of the State court upon an appeal).

have justified the dismissal.11 The Federal court may vacate an order, previously made by the State court, denying a motion to set aside service of process.12 A removal operates as an abandonment of an appeal from an interlocutory order not appealable in the Federal courts.13

§ 555e. Effect of removal upon attachments in the State court. An attachment levied upon the property of a non-resident under process of the State court, in accordance with the statutes of the State, will be upheld and enforced by the Federal court after removal, although the Federal court had no jurisdiction to levy such an attachment originally. In such a case the Federal court may serve process upon the non-resident by publication, in accordance with the State statute or a publication. In case of his failure to appear, however, no personal judgment can be entered against him; but the judgment entered can be enforced only against the property attached. Where a suit in equity had been begun by a writ of foreign attachment in a State court; it was held, after a removal, that the State practice should be followed, which authorized a rule directing the plaintiffs to show cause of action and why the attachment should not be dissolved. The Federal court may authorize its marshal to take, into his custody, property held by the sheriff under a writ of the State court issued before the removal.4 But where the

11 Sutro v. Simpson, 14 Fed. 370, 4 McCrary, 276 (for failure to give security for costs).

12 Remington v. Central Pac. R. R. Co., 198 U. S. 95, 49 L. ed. 959. Contra, Brooks v. Farwell, 4 Fed. 166 (2 McCrary 220); Allmark v. Platte S. S. Co., 76 Fed. 615; Guernsey v. Cross, 153 Fed. 827.

13 Freeman v. Butler, 39 Fed. 1. Contra, Williams Mower & Reaper Co. v. Raynor, Fed. Cas. No. 17,748 (7 Biss. 245).

§ 555e. 1 Clark v. Wells, 203 U. S, 164, 51 L. ed. 138; Crocker Nat. Bank v. Pengenstecher, 44 Fed. 705; Vermilya v. Brown, 65 Fed. 149; supra, $470. See Purdy v. Wallace Muller & Co., 81 Fed. 513.

2 Clark v. Wells, 203 U. S. 164. 3 Commonwealth Trust Co. V. Frick, 120 Fed. 688.

4 Friedman v. Israel, 26 Fed. 801. In a replevin suit, Mr. Justice Nelson suggested that the property held by the State sheriff might be sold under the direction of the Federal court and the proceeds deposited in its registry. Dennistown v. Draper, 5 Blatchf. 336, Fed. Cas. No. 3,804. It has been held that where the plaintiff succeeds in such a case, the fees for the attachment should be equally divided between the sheriff and the marshal. Duryee v. International Mach. & Eng. Co., D. C., S. D. N. Y., January, 1912.