the plaintiff, or a local influence exercised by him. Prejudice or local influence between defendants is not sufficient. The prejudice or influence must be personal, and not judicial. Thus, if it appears that the state court entertains such a view of the law that the defendant cannot succeed in that court, while the view entertained by the federal court is more favorable, this is no ground of removal.76

126. Removal of civil rights cases.-Civil suits or criminal prosecutions commenced in state courts may be removed by the defendant at any time before the trial when it appears that he cannot in such state court enforce any right secured to him under the civil rights laws. This right of removal also extends to any civil or military officer or other person who may be sued for having made any arrest or imprisonment, or other alleged trespass, when he was acting under any such civil rights law. If the state authorities refuse to remove the case it may nevertheless be docketed in the district court, and new pleadings or copies of the record may be filed in the district court." It is further provided that civil suits or criminal prosecutions against any revenue officer for acts done by him or under his authority may be also removed in like manner, except that the petition is filed in the district court and not in the state court. This right also extends to persons who are sued for acts under any civil rights law or revenue law, or under any other act of Congress."

78

75 Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685. 76 Adelbert College v. Toledo, etc., R. Co., 47 Fed. 836.

77 Judicial Code, § 31.

78 Judicial Code, § 33.

127. Removal of suits by aliens against federal officers.-Personal actions brought by aliens against any citizen of a state who is a federal officer, or was such at the time the action accrued, may be removed by the defendant if he is a non-resident of the state where the action is pending.79

128. Effect of removal on state proceedings.In all of the statutes authorizing removal it is provided that after the case has been removed, that is, after the proper papers have been filed, the state court shall proceed no further in the particular case. It sometimes happens that in the opinion of the state court there is no right of removal, and that court proceeds with the cause. If it does so it cannot be compelled by any process issuable by the district court to let go its claim of jurisdiction and order the removal. The only remedy is by writ of error from the Supreme Court of the United States to the highest state court after final judgment.so The district court may also proceed, and if it turns out that the cause was properly removed its judgment is final.81

129. Remanding cases improperly removed.-It was for the first time provided by §5 of the Judiciary Act of 187582 that if at any stage of the case in the district court, either commenced therein or removed from the state court, it should appear to the satisfaction of the court at any time after the

79 Judicial Code, § 34.

80 Chesapeake & O. R. Co. v. White, 111 U. S. 134, 4 Sup. Ct. 353, 28 L. Ed. 378.

81 Kern v. Huidekoper, 103 U. S. 485, 26 L. Ed. 354.

82 18 Stats. at Large, p. 470.

suit was brought or removed that it did not really or substantially involve a suit or controversy properly within the jurisdiction of the court, or that the parties had been improperly or collusively made or joined to give jurisdiction, the case should be remanded, but with the right of review in the Supreme Court. This right of review was taken away by the Act of 1887. Under this provision the district court may take cognizance of the defective jurisdiction of its own motion, or the matter may be called to its attention by a party to the suit. It is the duty of the court under such circumstances to try the question of the right of removal, but it should be satisfied that the case is not removable or not properly brought, there being a strong presumption in favor of jurisdiction. A motion to remand may also be made at any time by the party against whom the removal was made, and who has not waived his right to such remand. Such motions are presented upon verified petition or affidavit, and if a remand is made by the court it cannot be reviewed in any manner.

CHAPTER IV.

STATE COURTS AND COURTS OF SPECIAL AND STATUTORY JURISDICTION.

84

130. State courts of general jurisdiction.-The states have given their superior courts of original jurisdiction general cognizance of all civil and criminal cases except petty matters cognizable by justices of the peace, police and municipal courts, and the administration of the estates of deceased persons. 83 These courts of general jurisdiction in the state also have the power of review over justice's courts, probate and municipal courts, and sometimes over state boards and commissions exercising quasi-judicial power. They administer the common law, equity law and statute law of the respective states, and also federal law when the particular case requires it, as in the cases of land depending on whether the title has passed from the government,85 suits on the employers' liability act, suits by the United States, and generally all suits in the concurrent jurisdiction arising under the federal Constitution, law or treaty. Cases of diverse citizenship, and between citizens and aliens, generally present questions of state law only, whether brought in state or in federal courts.se

The Supreme Court of the United States may by

83 Dow v. Johnson, 100 U. S. 158, 25 L. Ed. 632.

84 A list of all such courts is given in 11 Cyc. 801.

85 Wilcox v. Jackson, 13 Pet. 498 (U. S.), 10 L. Ed. 264.

86 The relation of state and federal courts is discussed in Chapter 2 of this article.

writ of error review final decisions of the highest state courts when the case depended for its decision upon a federal question.87

131. Probate courts.-There is a general uniformity in the constitution and organization of probate courts throughout the country, though some have more powers than others.88 In New York they are called surrogate's courts, and in Pennsylvania, Maryland and Virginia they are known as orphans' courts, and in some states as county courts. In Iowa the circuit courts have exclusive jurisdiction of the settlement of estates,89 and in Louisiana the parish or county courts have like powers.

90

Their jurisdiction. Being vested with exclusive power to prove wills, and generally to settle estates, subject only to the concurrent jurisdiction of courts of equity in suits against executors, administrators and guardians," they are superior courts, whose decrees are aided by the presumption of regularity if the proceedings fail to show jurisdiction.92 This rule, however, in many of the states is not applied to special statutory proceedings in the probate courts, as for the sale of lands to pay debts.93

Their general powers relate to the proof of wills, issuing letters testamentary and of administration, collection of effects of decedents, proof and payment of debts and legacies, assignment of dower and home

87 § 49.

88 Griffith v. Frasier, 8 Cranch 9 (U. S.), 3 L. Ed. 471.

89 Clark v. Bever, 139 U. S. 96, 102, 11 Sup. Ct. 468, 35 L. Ed. 88.

90 Simmons v. Saul, 138 U. S. 439, 11 Sup. Ct. 369, 34 L. Ed. 1054. 91 Payne v. Hook, 7 Wall. 425 (U. S.), 19 L. Ed. 260.

92 § 7.

93 Mohr v. Tulip, 40 Wis. 66, a guardian's sale.