June 11, 1931. The opinion of the Court was delivered by By consent of the parties, two cases, entitled as above, are before this Court as one.
The defendants in the case moved before his Honor, Judge Dennis, in the Court of Common Pleas for Greenville County, that the record in the cases be transferred to the *Page 551 United States District Court for the Western District of South Carolina, and that no further proceedings be had in the Court of Common Pleas for Greenville County. Judge Dennis refused the motion, and from his action the defendants gave notice of intention to appeal to this court, and thereafter the appeal was properly filed in this Court.
Pending the determination of the appeal by this Court, on motion of the plaintiff, Hon. J. Lyles Glenn, United States District Judge, presiding in the District Court of the Western District for this State, remanded the case to the State Court. Thereupon the plaintiff, basing his motion on the order of Judge Glenn, moved this Court to dismiss the pending appeal, for the reason that the same presented only a moot question and was academic in nature.
It is our opinion that the motion should be granted. Section 71, Title 28, of the United States Code Annotated (Judicial Code, § 28), contains this provision: "Whenever any cause shall be removed from any State Court into any District Court of the United States, and the District Court shall decide that the cause was improperly removed, and order the same to be remanded to the State Court from whence it came, such remand shall be immediately carried into execution, and no appeal or writ of error from the decision of the District Court so remanding such cause shall be allowed."
That an order of remand by the United States District Court is conclusive on the State Court, and that the same cannot be annulled or superseded by any other Court, is well established by many authorities. See notes of decisions beginning at page 9 U.S. Code Annotated, Title 28, § 71 (West Publishing Company). Our own Court has fully recognized these positions. In Osteen v. A.C.L.R. Co., 119 S.C. 438,112 S.E., 352, 359, it was said: "Section 28 of the Judicial Code (U.S. Comp. St. § 1010 [28 U.S.C.A. § 71)]), in most unequivocal terms makes the order of a District Judge of the Federal Court remanding a case to the *Page 552 State Court absolutely final — not only final so far as an immediate appeal is concerned, but final upon writ of error orcertiorari to the State Court from the United States Supreme Court after final judgment in the State Court against the defendant. This is conceded by the defendant, which disavows any purpose in this appeal to review the order of Judge Smith remanding the case."
The plaintiff in this case would be in a bad fix if we, under the circumstances, should entertain the appeal and conclude to reverse the order of Judge Dennis. We would say to him, "You cannot stay in the State Court, but you must go to the Federal Court." At the door of the Federal Court, he would be met by the order of the United States District Judge telling him that he could not come into that Court and must return to the State Court. The easiest, wisest, and best way to clear up the situation, and the only course which should be followed, is for this Court to dismiss the appeal pending here, and to follow what Judge Glenn said should be done, let the plaintiff have the right to have his cause heard in the Court of Common Pleas for Greenville County.
The motion to dismiss the appeal is accordingly granted.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.
MR. JUSTICE COTHRAN dissents.