In Michigan Central Railway Co. v. *Page 292 Mix, 278 U.S. 492, 49 Sup. Ct. 207, 73 Law Ed. 470, the action was brought in a Missouri State Court for redress under a Federal law of an alleged wrongful death in interstate transportation. The judgment was reversed because the action, being brought in a State in which the defendant railroad company, a Michigan corporation, had no part of its railroad, was an unlawful burden to interstate commerce. The service of process was made in Missouri on an agent of the railroad company in Missouri who only solicited interstate transportation business in Missouri for the Michigan railroad company, and the railroad company did not consent to be sued in Missouri in the case.
In that case the opinion states:
"The contention that filing the petition for removal to the federal court was equivalent to the entry of a general appearance is obviously unsound. General Investment Co. v. Lake Shore Ry. Co., 260 U.S. 26809; Hassler v. Shaw, 271 U.S. 195. There is also a suggestion that the motion to quash the summons made by the Railroad, in the state court after the remand, operated, under the Missouri practice, as a general appearance, York v. Texas, 137 U.S. 15; and that this precluded it from objecting to a trial of the cause within that State. We have no occasion to enquire into the local practice. The constitutional claim sustained in Davis v. Farmers Co-operative Co.,262 U.S. 312, was not that under the Fourteenth Amendment as in Rosenberg Bros. Co. v. Curtis Brown Co., 260 U.S. 516. It was assumed that the carrier had been found within the State. The judgment was reversed on the ground that to compel it to try the cause there would burden interstate commerce and, hence, would violate the commerce clause. No local rule of practice can prevent the carrier from laying the appropriate foundation for the enforcement of its *Page 293 constitutional right by making a seasonable motion. Compare Sioux Remedy Co., v. Cope 235 U.S. 197; Yazoo Mississippi Valley R. R. v. Mullins, 249 U.S. 531; Davis v. Wechsler,263 U.S. 22, 24."
In other cases cited a Federal question was involved, or, if a Federal question was not involved, a Federal rule of procedure was followed, and not a State law, under the then controlling precedent of Swift v. Tyson, 16 Pet. 1, which was overruled in Erie Railway Co. v. Tompkins, decided by the United States Supreme Court, April 25, 1938, holding that State decisions as well as State statutes should be followed in the United States Court where the jurisdiction of such courts depends upon diversity of citizenship, of the parties litigant. See also Floyd Hudson v. Moonier, U.S. Supreme Court, May 23, 1938. See Employees Corporation v. Bryant, 299 U.S. 374, the decision was as to procedure in a Federal District Court.
In this case a citizen of Florida sues in a State court citizens of another State together with Ohio corporations and Florida governmental corporations for an accounting and payment on a contract for professional services rendered in Florida.
The non-resident defendants include in their petition for removal of the cause to the United States District Court, an allegation that the joinder of certain named defendants in the cause is fraudulent and made for the purpose of hindering and embarrassing the Petitioners in the removal of this action to the United States District Court. This allegation goes to the right to remove the cause to the United States District Court and not to the service of process on the defendants.
The cause was remanded to the State court and the order of the State court sustaining objections to the motions of non-resident defendants to quash the service of State *Page 294 process on them was based upon a decision of this court which is controlling in State courts in the trial causes arising upon local contracts when no Federal laws have been violated.
The cause being remanded in the discretion of the U.S. District Court there can be no penalizing of the complaining defendants.
ELLIS, C. J., and CHAPMAN, J., concur.