On a former rehearing in this case, the same was, on October 26, 1938, denied by an equally divided Court.
After consideration of the extraordinary petition for rehearing filed and granted in this case in November, 1938, a majority of the Court have reached the conclusion that the position taken by us in our original opinion in this case is erroneous, in that it would result in the establishment of a rule in this State which would penalize a party for applying for the removal of a cause pending in a court of this State to the federal court and would violate the rule of comity between state and federal courts. We still agree with the general statement made in our original opinion (appearing in 130 Fla. 442, 178 So. 112) that it is within the power of a state court to determine what constitutes a general or special appearance in the courts of the State. However, we cannot, after further consideration, concur in the further statement that this Court is committed to the ruling laid down in said original opinion by the decision in the case of State ex rel. Neel v. Love,110 Fla. 91, 148 So. 208, upon the theory that the decision in that case committed this Court to holding that the mere filing of a petition and bond for the removal of a cause to a federal court constitutes in all cases a general appearance in the state court. It is true that the headnotes in the Neel case indicate such holding, but in the extract from the opinion of Mr. Chief Justice DAVIS in that case, quoted in our original opinion in this case, it will be noted that he stated that a defendant's appearance in a state court for the purpose of filing a petition and bond for removal of the pending cause to the federal court, is, "in the event the Petition for removal isdenied because filed too late, an appearance in the *Page 299 state court for all purposes thereafter in so far as the state court is concerned." (Emphasis supplied.)
In the case of State ex rel. Neel v. Love, supra, the petition for removal from the state court. to the federal court was denied because the petition was filed after the time fixed by the statutes of the State of Florida for pleading and when the petitioning party was in default. In the case at bar the petition for removal was timely filed, on a special appearance for that sole purpose, when the petitioning parties were not in default. In the Neel case, the cause was not removed to the federal court. In the instant case the petition for removal was granted, the cause was removed and was subsequently remanded to the state court by the district judge.
The opinion in the case of State ex rel. Neel v. Love, supra, cited as authority, Britton v. Beltzhoover, 147 Miss. 737,113 So. 346. The facts in that case were closely akin to those in the case of State ex rel. Neel v. Love. In a later case, McCoy v. Watson, 153 Miss. 416, 121 So. 116, the Supreme Court of Mississippi decided a case wherein the facts were almost if not quite identical with those in the case at bar, and distinguished that case from its former decision in Britton v. Beltzhoover. In that case McCoy v. Watson, the Supreme Court of Mississippi had this to say:
"We are therefore at the threshold confronted with the proposition whether an appearance in a state court for the sole purpose of taking the statutory steps for the removal of a cause to the federal court — the defendant doing no more or further than that — shall be deemed such an appearance that, when the cause is remanded, the defendant is then in the said state court without necessity of valid process.
"Since the right of removal to a federal court is one *Page 300 granted by federal statutes under the Federal Constitution, and which therefore becomes a right supreme to that which in anywise might be attempted to be provided to the contrary by any state statute or rule of procedure, 'it is extremely desirable,' as was said in Railroad Co. v. Lyon,99 Miss. at page 197, 54 So. 731, 34 L.R.A. (N.S.) 234, Ann. Cas. 1912d 800, 'that, upon questions of this sort, this court would be bound to follow the United States Supreme Court.' The latter court has repeatedly answered the above-stated proposition in the negative; and we hereby announce our alignment with those decisions. In the very latest case on the subject, Michigan Cent. R. R. Co. v. Mix, et al., 278 U.S. 492, 49. S. Ct. 207,73 L.Ed. 740, decided by the Supreme Court of the United States on February 18, 1929, it is distinctly stated that 'the contention that filing the petition for removal to the federal court was equivalent to the entry of a general appearance is obviously unsound' citing General Investment Co. v. Lake Shore Ry. Co., 260 U.S. 268, 269, 43 S.Ct. 106, 67 L. Ed. 244, and Hassler v. Shaw, 271 U.S. 195, 46 S.Ct. 479, 70 L.Ed. 900. And it has also been held by that court, to which we conform, that it is immaterial that the petition for removal is in general terms, without therein specifying or stating that the appearance is special and for the purpose of removal only. Wabash Western Ry. Co. v. Brown, 164 U.S. 271, 17 S.Ct. 126,41 L.Ed. 431. See also Cain v. Commercial Pub. Co.,232 U.S. 124-131, 34 S.Ct. 284, 58 L.Ed. 534; Goldey v. Morning News Co., 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517; Mechanical Appliance Co. v. Castleman, 215 U.S. 427-441, 30 S.Ct. 125,54 L.Ed. 272, and the numerous additional cases cited in 4 C. J. p. 1343.
"It was not intended to be held otherwise in Britton v. Beltzhoover, 147 Miss. 737, 113 So. 346, than is now hereby *Page 301 decided. In the first syllabus in that case it appears that the defendant did more than merely petition for a removal, and on page 744 (113 So. 346) it is shown that, at the term at which the attachment was returnable, all the defendants were granted time to plead, and that thereafter, although time had been allowed to plead, the defendant, instead of doing so, filed, confessedly out of time, and apparently either for delay or merely to trifle with the court, a petition for removal. That opinion must be confined strictly to the facts, and this much is said about it, that it may no longer be relied on in error of what it actually decided."
We think that the opinion of the Supreme Court of Mississippi above quoted from indicates the proper rule which should be followed by the Supreme Court of this State, and which, as shown by the very fair and comprehensive opinion of Mr. Justice CHAPMAN, on the original hearing herein, appears to be followed by a majority of the state courts. See also Goldey v. Morning News Co., 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 519. and the recent case of Employer's Reinsurance Corporation v. Bryant,299 U.S. 374, 81 L.Ed. 289.
For the reasons above stated a majority of the court are of the opinion that our former holding on this point in this case should be receded from, and the majority rule, as set forth in McCoy v. Watson, supra, adopted and applied.
Our former judgment of affirmance is therefore vacated, and the order appealed from is now reversed.
TERRELL, C. J., and BROWN, BUFORD and THOMAS, J. J., concur.
WHITFIELD and CHAPMAN dissent and adhere to our original opinion.