right to remove the case to the United States court. The case was removed in fact, and, while the parties could not give jurisdiction by consent, there was the requisite amount and the diversity of citizenship necessary to give the United States Circuit Court jurisdiction of the cause. The case, therefore, resolves itself into an inquiry as to whether, if irregularly removed, it could be lawfully tried and determined. Removal proceedings are in the nature of process to bring the parties before the United States court. As in other forms of process, the litigant has the right to rely upon the statute and to insist that, in compliance with its terms, the case shall be taken from the state to the Federal court in the proper district, on motion of the proper person, at the proper time, and on giving the proper bond. But these provisions are for the benefit of the defendant and intended to secure his appearance. When that result is accomplished by his voluntary attendance, the court will not, of its own motion, inquire as to the regularity of the issue or service of the process,—or, indeed, whether there was any process at all, since it could be waived, in whole or in part, either expressly or by failing seasonably to object. Powers v. C. & O. Ry., 169 U. S. 92, 98. What took place in the state court may, therefore, be disregarded by the court because it was waived by the parties, and regardless of the manner in which the case was brought or how the attendance of the parties in the United States court was secured, there was presented to the Circuit Court a controversy between citizens of different States in which the amount claimed by one non-resident was more than $2,000, exclusive of interest and costs. As the court had jurisdiction of the subject-matter the parties could have been realigned by making Mackay plaintiff and the Development Company defendant, if that had been found proper. But if there was any irreg 229 U. S. Opinion of the Court. ularity in docketing the case or in the order of the pleadings such an irregularity was waivable and neither it nor the method of getting the parties before the court operated to deprive it of the power to determine the cause. The Fourth question certified to us by the Circuit Court of Appeals is answered in the affirmative. TEXAS & PACIFIC RAILWAY COMPANY v. PRATER. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT. No. 211. Submitted April 15, 1913. Decided May 26, 1913. There being evidence to sustain the verdict that plaintiff was not guilty of contributory negligence, the court below properly denied a motion to direct a verdict for the defendant, and this court affirms the judgment with ten per cent. damages. 183 Fed. Rep. 574, affirmed. THE facts, which involve the validity of a verdict and judgment against a railroad company for personal injuries sustained by one of its employés, are stated in the opinion. Mr. W. L. Hall for plaintiff in error. Mr. C. C. Prater, pro se, and Mr. A. W. Gregg for defendant in error. Memorandum opinion, by direction of the court, by MR. JUSTICE LAMAR. The plaintiff, a locomotive engineer, sued for personal injuries resulting from a collision with a freight train VOL. CCXXIX-12 which had been left standing, without danger signals, on the track in the defendant's railroad yard at Thurber Junction, Texas. The company contended that he had been guilty of contributory negligence in failing to keep a lookout, in running at a high rate of speed, and disregarding rules requiring the engineer to keep the locomotive under control in anticipation that cars might be on the tracks within yard limits. The evidence for the plaintiff tended to show that he was in the exercise of proper diligence; that from his position on the right of the locomotive he could look straight down the track, but on account of the height of the boiler, could not see the freight train, which was standing on a curve, which there turned to the left; that it was about dark and the freight train having no danger signals, and being out of range of the headlight, was not seen by the fireman, on the left of the engine, until too late to avoid the collision, although the emergency brake was applied as soon as he saw the danger and gave warning to the engineer. The defendant offered evidence tending to show that the speed exceeded that permitted in the yard limits and that the freight train could have been seen in time to stop if proper lookout had been kept. From the physical condition proved, and the whole evidence, the company moved the court to direct a verdict in its favor. The motion was overruled and the jury found for the plaintiff. There was no exception to the charge, but the case was taken to the Circuit Court of Appeals on the ground that, from the undisputed evidence, the plaintiff was shown to have been guilty of contributory negligence. That court held (183 Fed. Rep. 574) that though the evidence was conflicting that for the plaintiff was sufficient to sustain the verdict. In that view we fully concur; and, as there is no question of law involved, the judgment is affirmed with ten per cent. damages. Affirmed. 229 U.S. Statement of the Case. FIRST NATIONAL BANK OF CLAREMORE v. KEYS. FIRST NATIONAL BANK OF VINITA v. SAME. CITIZENS' BANK OF PRYOR CREEK v. SAME. HOGAN v. SAME. ERROR TO THE SUPREME COURT OF OKLAHOMA. Nos. 263, 264, 302, 303. Argued April 25, 28, 1913.-Decided May 26, 1913. Registration laws are of statutory origin, and, in each case, the applicable statute determines what instruments are to be recorded and where and what the effect is of failure to record. An act of Congress creating a new district in the Indian Territory and establishing a clerk's office therein, and which does not expressly so provide, does not require a chattel mortgagee to re-record his instrument in the new clerk's office. Where the duty of transferring records of instruments from one clerk's office to another newly established is placed upon the clerk, rights of persons under such instruments are not lost on account of the failure of the clerk to comply with the statute. Even if the decision of a state court having jurisdiction of a case transferred from a Federal court were subject to review here on a nonFederal question, this court would not, in the absence of manifest error, interfere with the discretion of the trial judge in permitting or refusing an amendment. 27 Oklahoma, 704, affirmed. ON July 20, 1906, the First National Bank of Claremore brought suit against Wat Mayes in the United States District Court in the Indian Territory, Northern District, sitting at Vinita. An attachment issued and was levied on cattle belonging to Mayes and located on his ranch near Pryor Creek. It appeared that he had given mortgages Statement of the Case. 229 U. S. on the herd to Vinita National Bank (1899), C. M. Keys & Co. (1901), First National Bank of Vinita (1903), Citizens' Bank (July 24, 1905), J. C. Hogan (July 27, 1905), Mary D. Mayes (Aug. 2, 1905). These mortgagees intervened in the attachment suit and asked that the case be transferred to the Equity Docket and that the cattle be sold and the proceeds applied to the payment of their debts. It appeared that the Bank of Claremore and the First National Bank of Vinita also had mortgages on real estate, and it was contended that having a lien on two funds they should be required to seek payment out of this land before receiving anything under their mortgages against the cattle. A receiver was appointed, who took charge of the property, real and personal. He sold the herd for $11,234.47. The case was then referred to a master, where all the mortgages were proved, although an attack was made on that given by Mayes to Keyes & Co. It appeared that being indebted to that firm $34,800.04, he, on October 28, 1901, gave them a note therefor due one month after date. To secure that note and any renewals thereof he, on October 29, 1901, executed a mortgage on 2,835 head of mixed cattle and their increase. The cattle were described as being located on the "mortgagor's range, 3 miles south of Pryor Creek, I. T.," then in the Northern Judicial District of the Indian Territory. The acknowledgment recited that "Mayes executed the same for the purposes and consideration therein named,' omitting "and set forth" which it was claimed was required by the provisions of § 656, Mansfield's Digest of force in the Indian Territory. This mortgage, thus acknowledged, was filed for record Oct. 31, 1901, with the Clerk of the United States court, ex officio recorder for the Northern District of Indian Territory, at Muskogee, and was recorded Nov. 22, 1901. At the hearing Mayes contended that he had shipped |