* Corpus Juris-Cyc References: Federal Courts, 25CJ, p. 939, n. 57; p. 944, n. 88 New. Removal of Causes, 34Cyc, p. 1283, n. 35, 39. The appellee, Walter Nix, brought this action in the circuit court of Forrest county against appellants Hercules Powder Company, a Delaware corporation, and C.H. Brown, for damages for a personal injury suffered by appellee through the alleged negligence of appellants. The suit was for twenty thousand dollars, and judgment was recovered for ten thousand dollars, from which appellants prosecute this appeal.
Before the expiration of the time within which, under the laws of this state, appellants were required to plead to appellee's declaration, appellants filed a petition and bond to remove the cause to the Federal court. The petition and bond were regular in form and substance; the former being properly verified. The petition alleged that *Page 120 at the time of the commencement of the suit, and at the time of the filing of the petition, appellee was a citizen and resident of the state of Mississippi; that appellant the Hercules Powder Company was at the time of the commencement of the suit, as well as at the filing of the petition, a citizen of and a corporation existing under and by virtue of the laws of the state of Delaware, a resident of said state, and a nonresident of the state of Mississippi; and that appellant C.H. Brown was at the time of the commencement of this suit a citizen and resident of the state of Illinois and a nonresident of the state of Mississippi.
The trial court adjudged the petition and bond sufficient on their face, but, over the objection of appellants, permitted appellee to take issue on the petition. Thereupon appellee filed an answer to the petition, denying that appellant C.H. Brown was a resident citizen of the state of Illinois, and averring that he was a resident citizen of the state of Mississippi; and, over appellants' objection, the trial court heard evidence on the issue of fact made by the petition and answer. On the trial of the issue, appellee introduced evidence, but appellants introduced none. This evidence was heard and considered by the court over the appellants' objection. The court found that appellant C.H. Brown was not a citizen nor a resident of the state of Illinois, but was a resident citizen of the state of Mississippi, and entered an order so adjudging and declining to remove the cause into the Federal court. Thereupon a trial was had resulting in a verdict and judgment for appellee.
Appellants' position is that the state court had no authority, under the law, to go beyond the face of the petition for removal, and that, the petition being sufficient on its face, there was nothing for the state court to do, except to enter an order removing the cause into the Federal court; while the position of the appellee is, and as shown the state court took that view, that the state court had the right to inquire into the truth of the allegations of the petition. *Page 121
Section 29 of the Federal Judicial Code (U.S. Comp. St., section 1011), after providing for a petition and bond for the removal of causes from state courts to the Federal courts, provides:
"It shall then be the duty of the state court to accept said petition and bond, and proceed no further in such suit."
Whatever confusion, if any, existed in the decisions of the supreme court of the United States on this question was cleared up beginning with the case of Stone v. South Carolina,117 U.S. 430, 29 L.Ed. 962, 6 S.Ct. 799, and the decisions of that court subsequent to that case. It was held in the Stone case:
That "all issues of fact made upon the petition for removal must be tried in the circuit court" (now district court).
It was held in Burlington, C.R. N.R. Co. v. Dunn,122 U.S. 513, 7 S.Ct. 1262, 30 L.Ed. 1159, that all issues of fact made upon the petition for removal must be tried by the Federal court. It was held in Crehore v. Ohio Mississippi RailwayCo., 131 U.S. 240, 9 S.Ct. 692, 33 L.Ed. 144:
That "`the state court is only at liberty to inquire whether, on the face of the record, a case has been made which requires it to proceed no further;' and `all issues of fact made upon the petition for removal must be tried in the circuit court.'" (now district court).
In the case of Illinois Central Railroad Co. v. Sheegog,215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208, the court said:
"It is equally well settled, and is a result of the principle just stated, that, where the right of removal arises because of certain facts averred in the petition, that issue cannot be tried in the state court, but must be heard in the Federal court, which alone has jurisdiction to determine such issues of fact."
In the case of Chicago, R.I. P.R. Co. v. Dowell,229 U.S. 102, 33 S.Ct. 684, 57 L.Ed. 1090, in discussing this question, the court said: *Page 122
"Allegations of fact, if controverted, arising upon such a petition, are triable only in the court to which it is sought to be removed."
In Chesapeake O.R. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544, the court said:
"Issues of fact arising upon a petition for removal are to be determined in the Federal court, and that the state court, for the purpose of determining for itself whether it will surrender jurisdiction, must accept as true the allegations of fact in such petition."
In the case of Wilson v. Republic Iron Steel Co.,257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144, the court said:
"The petition must be verified [section 29, Judicial Code] and its statements must be taken by the state court as true. . . . If a removal is effected, the plaintiff may, by a motion to remand, plea, or answer, take issue with the statements in the petition. If he does, the issues so arising must be heard and determined by the district court."
The reason of the rule declared by the supreme court was stated by Judge WAITE in the Dunn case, in this language:
"The theory on which it rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents then to the state court a pure question of law, and that is whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit. That question the state court has the right to decide for itself; and if it errs in keeping the case, and the highest court of the state affirms its decision, this court has jurisdiction to correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal. Stone v. South Carolina, 117 U.S. 430 [6 S.Ct. 799, 29 L.Ed. 962],supra, and cases there cited. *Page 123
"But even though the state court should refuse to stop proceedings, the petitioning party may enter a copy of the record of that court as it stood on the filing of his petition, in the circuit court, and have the suit docketed there. If the circuit court errs in taking jurisdiction, the other side may bring the decision here for review, after final judgment or decree, if the value of the matter in dispute is sufficient in amount. [Baltimore O.] R. Co. v. Koontz, 104 U.S. 5, 15 [26 L.Ed. 643, 646.] In that case, the same as in the writ of error to the state court, the question will be decided on the face of the part of the record of the state court which ends with the petition for removal, for the circuit court can no more take a case until its jurisdiction is shown by the record than the state court can be required to let it go until the record shows that its jurisdiction has been lost. The questions in the two courts will be identical, and will depend on the same record, namely, that in the state court ending with the petition for removal. The record remaining in the state court will be the original; that in the circuit court an exact copy.
"But, inasmuch as the petitioning party has the right to enter the suit in the circuit court, notwithstanding the state court declines to stop proceedings, it is easy to see that, if both courts can try the issues of fact which may be made on the petition for removal, the records from the two courts brought here for review will not necessarily always be the same. The testimony produced before one court may be entirely different from that in the other, and the decisions of both courts may be right upon the facts as presented to them respectively. Such a state of things should be avoided if possible, and this can only be done by making one court the exclusive judge of the facts. Upon that question there ought not to be a divided jurisdiction. It must rest with one court alone, and that, in our opinion, is more properly the circuit court. The case can be docketed in that court on the first day of the next term, and the issue tried at once. If decided against the removal, the question is now, by the *Page 124 Act of March 3, 1887, chapter 373, 24 Stat. at L. 552, put at rest, and the jurisdiction of the state court established in the appropriate way. Under the Act of March 3, 1875, chapter 137, 18 Stat. 470, such an order could have been brought here for review by appeal or writ of error, and to expedite such hearings our rule 32 was adopted."
Where there is a conflict of jurisdiction between a state court and a Federal court, a Federal question arises, for the settlement of which the supreme court of the United States is the court of last resort. The reason that is true is that as between state and Federal authority the latter is supreme and must prevail over the former. This is one of the fundamentals of our dual system of government.
Appellee contends, however, that the petition for removal was insufficient on its face on the ground that the mere allegation in the petition that appellant Brown was a resident citizen of the state of Illinois, and a nonresident of the state of Mississippi, was not an allegation of fact, but a conclusion from facts not stated that should have been stated; that the petition should have set out the facts going to show that appellant Brown was a resident citizen of the state of Illinois, and a nonresident of the state of Mississippi. We disagree with appellee in his contention. It is not necessary for the petition to set out the evidence upon which the citizenship of appellant Brown depended. The allegation that he was a resident citizen of the state of Illinois was an allegation of fact. It is true it was a mixed question of law and fact; nevertheless, it was an allegation of fact sufficient to put appellee on notice of what he had to meet in the application for removal.
It follows from these views that the trial court was in error in refusing to remove this cause into the Federal court.
Therefore the case is reversed and remanded to the state court to await the action of the Federal court on the application of appellants to remove.
Reversed and remanded. *Page 125