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U.S. Supreme Court

Cain v. Commercial Publishing Co., 232 U.S. 124 (1914)

Cain v. Commercial Publishing Company

No. 797

Submitted January 6, 1914

Decided January 19, 1914

232 U.S. 124


Revolutions in the practice and efficacy of the right of removal of causes from the state to the federal court will not lightly be presumed, and so held that the modification of the prior law and practice by the Judicial Code did not take from the federal court the power it has necessarily possessed to pass not only upon the merits of the case, but also upon the validity of the process on the question of jurisdiction over the person of the defendant.

Prior to the adoption of the Judicial Code, it was settled that:

The right and the procedure of removal of causes are to be determined by the federal law, Goldey v. Morning News, 156 U. S. 518; neither the legislature nor the judiciary of a state can limit either the right or its effect. Id.

The federal court has jurisdiction according to the Constitution and laws of the United States. Id.

A suit must be actually pending in the state court before it can be removed, but its removal is not an admission that it was rightfully pending and that defendant can be compelled to answer. Id.

After removal, defendant can avail in the federal court of every reserved defense, to be pleaded in the same manner as though the action had been originally commenced in the federal court. Id.

Exercising the right of removal and filing the petition does not amount to a general appearance.

These rules have not been altered by the adoption of §§ 29 and 38 of the Judicial Code.

The word "plead" in § 29 Judicial Code includes a plea to the jurisdiction.

Under the Conformity Act, § 914, Rev.Stat., a special appearance in a case removed to the federal court from the state court of Mississippi does not become a general appearance because of the provisions to that effect in § 3946, Mississippi Code of 1906.

The facts, which involve the construction and effect of §§ 29 and 38 of the Judicial Code, are stated in the opinion. chanroblesvirtualawlibrary

Page 232 U. S. 128

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