Page:Federal Reporter, 1st Series, Volume 9.djvu/210

 STEVEN8 V. EICHARDSON. 195 �Eicliardson Kave petitioned for the removal of the suit, and is con- ditioned that they shall do what the statute requires. The obligors are not otherwise called in the bond sureties for Stevens and Eich- ardson. The plaintiff contends that, as section 3 of the act of 1875 says that the petitioner for removal is to "make and file" the bond, the bond is void and the removal invalid. This objection is not tenable. The statute is satisfied, as to the bond, if a bond with suf- ficient surety is filed. The petitioner for removal makes the bond, in the sense oi the statute, if he offers it to the court as the bond required. By section 639 of the Revised Statutes he was required to oflFer good and suflScient surety. The act of 1875 means no more. Aside from this, a new bond, running in the name of and executed by Stevens and Eichardson as principals, and the former sureties as sureties, was filed in the state court on the twenty-eighth of Septem- ber, 1881, that court having made an order on the twenty-second of September that it be filed there nunc pro tune, as of July 27th. A copy was filed in this court October Ist. The first day of the next term of this court, after July 27th, was October 17th, The notice of motion to romand was not served till October 3d. Nothing to affect the stattis of the suit was done in the state court from July 27th to October Ist. The objection as to the bond is overruled, �It is also objected that Stevens and Eichardson voluntarily ap- peared in the state court without the summons being served upon either of them ; that, therefore, they were not in court, and no action was pending as to them ; that their voluntary appearance was a sub- mission to the jurisdictiou of the court, and a waiver of their right of removal; and that they also waived such right by obtaining in the state court an extension of their time to answer, and by giving notice of a motion in said court to dissolve a temporary injunction, which that court had granted, restraining them from collecting any rent from Stanfield, and from doing other acts as trustees. There is no force in these objections. A plaintiff, who brings his suit voluntarily, has a right to remove the cause under the same statute. The trustees were called onto appear and defend their trust by the bringingof the suit and the issuing of the injunction, and they lost no right of removal by saving to the plaintiff the trouble, expense, and delay of briaging them in compulsorily or by doing what they did. �The defendants move that the plaintiff replead in this court. It is not 80 entirely clear that there are causes of action at law set forth in the complaint which are so separate and distinct from the equita- ��� �