Page:Federal Reporter, 1st Series, Volume 8.djvu/694

680 FEDERAL REPORTBB. �at any time to amend any defect in the process or pleadings upon such conditions as may be prescribed, and contains, in my judgment, a legislative command to permit a petition like this to be amended to the same extent that other pleadings may. Whether they can be amended after the time prescribed for removal bas expired, or rather whether the amendment will operate only from the time at which it is made, or will relate to the time when the petition for removal was filed, it is not necessary in this case to decide. �I should, therefore, allow the application to amend, and retain the jurisdiction, but it does not advance the case at all, and, for the rea- son that we have the same difficulty as before in regard to the service of process upon this infant defendant, who must be brought into court in any event, and we have no method of getting her here under our practice. We cannot send a subpœna to Kentucky for her, nor can her guardian voluntarily appear, without personal service, according to our practice. He may do that in the state court, and her appear- ance may be compelled in that court by publication, but not here, for the reasons already stated in this opinion. Where a suit is brought in a federal court, and an indispensable party is out of the jurisdic- tion, it must be dismissed; but surely that is not to be the resuit of the attempted removal in this case; and yet I see no other, if the case bas been already removed to this court. We must, ex necessitate rei, resort to the law of the state upon the subject of process against infant defendants, or this case cannot progress beyond the point it was at the time of the attempted removal, and this reaort can only be had by remanding it to the state court for that purpose. �It has occurred to me that, inasmuoh as the eighth section of the act of Mardi 3, 1875, provides a substituted process by publication and notice to bring in absent defendants in certain exceptional cases where the suit is commenced in this court, we might apply it in thia case, as it is of the character provided for, although it was not com- menced but removed here, because the third section of the same act says that after a case has been removed here it shall proceed in the same manner as if it had been originally commenced here. But, on mature reflection, I am satisfied this is not a sound construction of the statute, and produces unnecessary confusion in the practice. These provisions for substituted process are not favored, and are no- where more strictly construed than by the federal courts; and it would be a stretch of judicial power to permit it in removed causes, when the act providing it in terms confines it to those commenced in the federal courts. Again, while this would remove the difficulty as ��� �