A state court is not bound to surrender its jurisdiction of a
suit on petition for removal, until a case has been made which on
its face shows that the petitioner has a right to the transfer, and
if it decides against the removal and proceeds with the cause, its
ruling is reviewable here after final judgment.
All issues of fact made upon a petition for removal must be
tried in the circuit court.
Page 117 U. S. 431
A suit between a state on the one side and citizens on the other
cannot be removed on the ground of citizenship.
A suit against partners to recover money received, for which
they are jointly liable, cannot be removed on the ground of a
separable controversy on the petition of one of the partners.
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This suit was brought by the State of South Carolina, in the
Court of Common Pleas of Richland county, on the 1st of August,
1877, against Daniel T. Corbin and William Stone, partners as
attorneys at law under the name of Corbin & Stone, to recover a
balance claimed to be due for moneys collected by the firm for the
state and not paid over. On the 27th of April, 1878, Stone
presented to the court a petition for the removal of the suit to
the Circuit Court of the United States for the District of South
Carolina. The statement in the petition material to the question
arising on this writ of error is as follows:
"That the petitioner is now, and was at the time when this
action was commenced, a citizen of the New York, and a resident
therein, and his codefendant is a citizen of South Carolina, and
the plaintiff is also a citizen of the State of South Carolina.
That under and by virtue of the statutes of the United States and
of the State of South Carolina, this suit is one in which there can
be a final determination of the controversy, so far as the
petitioner is concerned, without the presence of his co-defendant
as a party to the cause."
The state court proceeded with the suit notwithstanding the
petition, and after a trial gave judgment against both defendants.
During the whole of such proceeding, Stone denied the jurisdiction
of the court after the filing of his petition. The supreme court of
the state affirmed the judgment of the common pleas, and to reverse
this judgment of affirmance the present writ of error was
brought.
Page 117 U. S. 432
A state court is not bound to surrender its jurisdiction of a
suit on a petitioner for removal until a case has been made which
on its face shows that the petitioner has a right to the transfer.
Yulee v. Vose, 99 U. S. 539,
99 U. S. 545;
Removal Cases, 100 U. S. 457,
100 U. S. 474.
It is undoubtedly true, as was said in
Steamship Company v.
Tugman, 106 U. S. 122,
that upon the filing of the petition and bond -- the suit being
removable under the statute -- the jurisdiction of the state court
absolutely ceases, and that of the circuit court of the United
States immediately attaches; but still, as the right of removal is
statutory, before a party can avail himself of it he must show upon
the record that his is a case which comes within the provision of
the statute. As was said in
Insurance Company v. Pechner,
95 U. S. 183,
95 U. S.
185,
"his petition for removal when filed becomes a part of the
record in the cause. It should state facts which, when taken in
connection with such as already appear, entitle him to the
transfer. If he fails in this, he has not in law shown to the court
that it cannot 'proceed further with the suit.' Having once
acquired jurisdiction, the court may proceed until it has been
judicially informed that its power over the cause has been
suspended."
The mere filing of a petition for the removal of a suit which is
not removable does not work a transfer. To accomplish this, the
suit must be one that may be removed, and the petition must show a
right in the petitioner to demand the removal. This being made to
appear on the record, and the necessary security having been given,
the power of the state court in the case ends and that of the
circuit court begins.
All issues of fact made upon the petition for removal must be
tried in the circuit court, but the state court is at liberty to
determine for itself whether, on the face of the record, a removal
has been effected. If it decides against the removal and proceeds
with the cause notwithstanding the petition, its ruling on that
question will be reviewable here after final judgment under § 709
of the Revised Statues.
Removal Cases, 100
U. S. 472;
Railroad Co. v. Mississippi,
102 U. S. 141;
Kern v. Huidekoper, 103 U. S. 485;
Railroad Co. v. Koontz, 104 U. S. 15;
Chesapeake & Ohio Railroad Co. v. White, 111
U. S. 137. If the state court proceeds after a petition
for
Page 117 U. S. 433
removal, it does so at the risk of having its final judgment
reversed if the record on its face shows that when the petition was
filed, that court ought to have given up its jurisdiction. What
effect the writ of certiorari provided for in § 7 of the act of
1875 to require the state court to make return of the record to the
circuit court would have upon the further power of the state court
to proceed we do not now decide, as no such writ was issued in this
case.
It only remains to consider whether, on the face of this record,
it appears that the suit was removed from the state court by the
presentation of the petition of Stone, and about that, little need
be said. It is not pretended that the suit was one arising under
the Constitution or laws of the United States, and it certainly is
not one between citizens of different states. The State of South
Carolina is the sole plaintiff, and the defendants are citizens,
one of South Carolina and the other of New York. The cause of
action is joint, and only one of the defendants petitions for
removal. There is no statute which authorizes the removal of a suit
between a state and citizens on the ground of citizenship, for a
state cannot, in the nature of things, be a citizen of any state.
In
Ames v. Kansas, 111 U. S. 449, the
removal of a suit arising under the Constitution and laws of the
United States, brought by a state against a corporation amenable to
its own process, was sustained, but this was because of the subject
matter of the action, and not because of the citizenship of the
parties. Neither is there any separable controversy in the case
such as might, if the necessary citizenship existed, allow Stone
alone to remove the suit without joining Corbin with him in the
petition for removal. The money sued for was received by the
defendants as partners, and they are liable jointly for its payment
if they are liable at all. Such a case is not removable unless all
the parties on one side of the controversy unite in the petition.
Removal Cases, 100 U. S. 457;
Blake v. McKim, 103 U. S. 336;
Hyde v. Ruble, 104 U. S.
409.
The judgment of the Supreme Court of South Carolina is
Affirmed.