PALLS WIBB MANDP'g CO, V. BBODESIOK. 657 �stated and the filing of the written contract. AU this court will have deeided is that the motion to dismiss the counter- claim is sustained, whereby it will have deeided that it has no jurisdiction of the case, and that the same should be remanded at defendant's costs. If the motion to remand, in the present state of the record, is overruled, theri, under sec- tion 5 of the act of 1875, it may appear, through proper motions, that this court has not properly jurisdiction of the case, and the order to remand may hereafter be granted. The supreme court of Missouri has held that under the state praetice act profert is not necessary; and that advantage of the non-filing of a written contract must be taken by motion. If a case is removed to this court, without opportunity for making such a motion in the state court, and such motion is made here, will this court permit such contract to be filed here, and thus give the case here a position, jurisdictionally, different from what it had when removed ? Can the remov- ing party thus obtain jurisdiction, or escape the consequences of his position in the state court? Must he not abide by the record as it stood ? Or may he assume that, as no motion to dismiss was made before removal, the case here has the same status as if the contract had been filed before removal ? These difficulties are suggested with a view of determining the true meaning of the statute as to the amount in dispute. Under the act of 1789, the defendant, on entering his appear- ance, had to then file his petition for removal, and there is a long Une of decisions that the amount was to be determined by plaintiff's demand. Indeed, no other criterion could be had in the then state of the record. Since then varions acts of congress have granted permission to remove at other stages of the proceedings, but none has changed the rule as to the amount in dispute, or the rule by which it is to be ascer- tained, unless the adoption of the state practiee has so done under the acts of 1872. The rules of law, as established before state praetice as to counter claims existed, are familiar. Is it to be supposed that the uniform rulings of the United States court were intended to be overturned, as to removals, v.6,no.7— 42 ��� �
Page:Federal Reporter, 1st Series, Volume 6.djvu/669
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