I am unable to agree with the conclusion reached by my associates in this ease. It will only be necessary to restate a few of the undisputed facts to make clear my views.
In the suit brought in the state court by E. Harper and C. E. Grigger against the drainage district, a receiver was appointed who qualified as such on August 1, 1930, and went into possession of the records, hooks, papers, funds, assets, and affairs of the drainage district, and the res involved in this suit was therefore in his possession under an order of the state court when, on September 15, 1930, the appellees, Guardian Trust Company, as trustee, and Otis & Co., as trustees, filed a new suit in the United States District Court, joining as defendants the drainage district and certain named individuals as directors of the drainage district. As noted in the majority opinion, the appellees, on September 4, 1930, prior to the filing of their suit in federal court, presented to the state court a petition for removal of the Harper case to the federal court which petition was denied, hut on that date the court approved the removal bond filed by the appellees. If it be assumed that the state court suit was properly removed to the federal court, then undoubtedly the latter court acquired full jurisdiction, and its order appointing receiver was proper. If, on the other hand, the suit in the state court was not properly removed, then the appointment of a receiver by the federal court was erroneous because, prior thereto, the state court, through the appointment of a receiver, had taken possession of and acquired jurisdiction over the'property involved. Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457; Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 28 S. Ct. 182, 52 L. Ed. 379; Moran v. Sturges, 154 U. S. 256, 14 S. Ct. 1019, 38 L. Ed. 981; Lion Bonding & Surety Co. v, Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 640, 43 S. Ct. 641, 67 L. Ed. 1151; Farmers’ Loan & Trust Co. v. Lake St. Elevated R. Co., 177 U. S. 51, 20 S. Ct. 564, 44 L. Ed. 667; Priest v. Weaver (C. C. A.) 43 F.(2d) 57.
In determining, therefore, whether the order appointing receiver in the independent suit subsequently brought in the federal court by the appellees was improvidently entered or entered without jurisdiction, it is necessary to determine whether the suit pending in the state court was properly removed. My associates, in the majority opinion, by assuming without discussion that a removal of that suit was effected, have reached the conclusion that “the record does not present a ease of conflict of jurisdiction between the state and federal court with reference to the subject-matter. The removal terminated the jurisdiction of the state court and invested the federal court with jurisdiction.” This, it seems to me, is a begging of the question and passes without decision the real controversy in this case.
In this connection it should be observed that the order appointing the receiver in the federal court purports on its face to appoint such receiver in the suit brought by appellees in the federal court, and not in the suit purported to have been removed from the state to the federal court; in fact, this order directs the receiver so appointed to apply to the state court for an order requiring the receiver there appointed to turn over and surrender to the receiver of the federal court such property of the district as was in his hands; thus apparently clearly recognizing that the suit was then still pending in the state court and that the federal receiver had not been appointed in a suit removed thereto from the state court, but in the independent suit brought in the federal court. In other words, the lower court, by its order, required its receiver appointed in the suit originally brought in that court to take from the possession of a court of co-ordinate jurisdiction property which it had taken into its possession prior to. the time the federal court ap*590pointed its receiver. In defense of this action it is urged that, by a removal of the state court suit to the federal court, the latter court acquired such jurisdiction as the state court had acquired, and that with the removal of the suit the receivership was also removed. While it is true there is not presented here a direct attack upon the order denying the motion to remand the Harper suit to the state court, yet the validity of the order appointing the receiver by the lower court is, in the final analysis, dependent upon the removal of the state court suit. If that removal was ineffectual, then the federal court did not acquire jurisdiction in that suit. Crehore v. Ohio & Mississippi R. Co., 131 U. S. 240, 9 S. Ct. 692, 33 L. Ed. 144; Ralya Market Co. v. Armour & Co. (C. C.) 102 F. 530; Fife v. Whittell (C. C.) 102 F. 537; Murphy v. Payette Alluvial Gold Co. (C. C.) 98 F. 321. It is therefore necessary to examine the proceedings which it is claimed resulted in a removal of the state court suit to the federal court.
It is claimed that removal was effected by the appellees through the filing of a petition for removal and a proper bond. But confessedly the appellees were not, when the state court action was instituted, parties thereto. The removal act limits the right of removal to defendants who are actual parties to the suit. Section 71,Title 28, USCA; Kidder v. Northwestern Mut. Life Insurance Co. (C. C.) 117 F. 997, 998; Bertha Zinc & Mineral Co. v. Carico (C. C.) 61 F. 132, 136. Did the appellees become defendants to the suit pending in the state court?. As observed in the majority opinion, they appeared specially and filed a motion asking that they be made parties defendant “to the end that they may present a petition and bond for removal to the United States District Court for the Jonesboro Division of the Eastern District of Arkansas.” The appellees did not subject themselves to the jurisdiction of the state court. If defendants at all, they were such for the sole and only purpose of securing a removal of the cause. A party to a suit must ordinarily be a person upon whom judgment is conclusive under the rules of res judicata. Appellees sought to be made parties defendant for procedural purposes only, and their application amounted to no more than an application on behalf of those not parties to a suit for leave to file a petition and bond for removal thereof.
The suit on its face was not removable, because one of the plaintiffs was a citizen of Arkansas, as was the defendant district. The appellees were strangers to the record, but they wished to present the contention that none of the funds of the district could properly be used for repairing the levee. They were, however, unwilling to submit that question to the court in which the suit was pending. They could have intervened in that suit, but to have done so would have subjected them to the jurisdiction of the court. While taking the position that they were the real defendants and should be substituted as defendants in lieu of the drainage district, they did not ask such substitution for the obvious reason that, had they gone into the ease as substitutes, they could not have exercised the right of removal because the party for whom they were substituted did not have such right. Burnham v. First National Bank (C. C. A.) 53 F. 163; Houston & Texas Cent. R. Co. v. Shirley, 111 U. S. 358, 4 S. Ct. 472, 28 L. Ed. 455; Jefferson v. Driver, 117 U. S. 272, 6 S. Ct. 729, 29 L. Ed. 897. Remaining without the jurisdiction of the state court, they have sought to remove therefrom a suit to the federal court, where they seek to have the issues determined on the merits. After being permitted to file their petition for removal, they were still not subject to the jurisdiction of the state court; they had neither been sued nor become parties defendant in that court.
In Kidder v. Northwestern Mut. Life Insurance Co., supra, it is said: “They were not parties defendant. The statute does not authorize the removal of a suit by any one except The defendant or defendants therein.’ It makes no provision for removal at the instance of persons who may be pecuniarily interested in the subject-matter in controversy. It makes no provision for compelling or allowing other parties to be impleaded or substituted as defendants, and thereby make a removable cause out of one which was previously not removable.”
In Bertha Zinc & Mineral Co. v. Carico, supra, Carico, a citizen of Virginia, sued the Bertha Zinc Company, a Virginia corporation, in a Virginia court for damages on account of personal injuries. The Bertha Zinc & Mineral Company was a New Jersey corporation. It filed a motion for leave to file a petition for removal to the federal court, alleging that it had acquired all the property of the Bertha Zinc Company, and was the real defendant. The motion was accompanied by a petition and bond for removal. The plaintiff objected to the filing of the petition and bond unless the Bertha Zinc & Mineral Company would become a real par*591ty defendant and admit on the record that, in the event plaintiff should recover, it would bo liable therefor. This the movant refused to do, and its motion for removal was thereupon denied. Transcript of the record was then filed in federal court. The case in the state court, however, proceeded to judgment in favor of the plaintiff, and the Bertha Zinc & Mineral Company then filed a suit in the federal court in which it alleged that the action had been removed to tho federal court and that the state court was without jurisdiction to render judgment, and an injunction against the enforcement of the judgment was asked. A temporary injunction issued, but was later dissolved on tho ground that the Bertha Zinc & Mineral Company was not a party defendant to the suit in the state court, and that the federal court had acquired no jurisdiction by the filing of the petition and bond for removal and the lodging of the transcript of the record in that court. In the course of the opinion it is said: “It is clear that the statute contemplates the removal shall he made by a defendant or defendants who are actual parties to the suit. It makes no provision for removal at the instance of persons who may he beneficially interested. It makes no provision for compelling or allowing other parties to inter-plead in a ease, and thereby make tho case removable from a state to a United States circuit court, which was not so removable as between the original parties to the action. * * * As we have said, it was not a party defendant to the suit, and refused to enter itself on the record as such. It would be a strange construction of the statute allowing removals to permit the complainant, standing entirely outside of the record of the case in the state court, to< present its petition and secure the removal of a ease in which the defendant of record had no right to ask for a removal.”
In the instant ease, not only did appellees not subject themselves to the jurisdiction of the state court, but they submitted no> issue of fact to that court. The effect of their motion was for leave to file petition and bond for removal. If the case was in fact removable upon the filing of such a petition and bond, no further action could he taken by the state court except to remove, because it was divested of jurisdiction over the ease. Boatmen’s Bank v. Fritzlen (C. C. A.) 135 F. 650; New Orleans, Mobile & Texas R. Co. v. Mississippi, 102 U. S. 136, 26 L. Ed. 96; Carson v. Dunham, 121 U. S. 421, 7 S. Ct. 1030, 30 L. Ed. 992. The state court, in a removable ease, is bound to surrender jurisdiction when a ease is made which, on the face of the record, shows the petitioner has a right to the transfer. If the record makes a prima facie ease and the issues raised are upon facts stated in tho petition, these issues must be tried in the federal court, and the jurisdiction of tho state court is in abeyance until the federal court may try the issues on motion to remand. Dow v. Bradstreet Co. (C. C.) 46 F. 824; Boatmen’s Bank v. Fritzlen (C. C. A.) 135 F. 650; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 S. Ct. 306, 34 L. Ed. 963; Donovan v. Wells Fargo & Co. (C. C. A.) 169 F. 363, 22 L. R. A. (N. S.) 1250; Chesapeake & Ohio R. Co. v. McCabe, 213 U. S. 207, 29 S. Ct. 430, 53 L. Ed. 765.
The filing of the motion to he made parties defendant, for the sole purpose of filing petition and bond for removal, was a mere gesture, and, as before observed, did not invoke any jurisdiction of tho state court, and it is not claimed that tho removal of the suit was effected by any act of tho state court; but the removal, if effected, was brought about in spite of the action of that court through the filing of a petition and bond in proper form.
The petition for removal presented to the state court was denied by that court on the grounds that the movants were not defendants. That court, referring to the appellees, said: “Petitioners are not made defendants by the plaintiffs. They have not made themselves defendants in the sense of the statute. * * * This court either has exclusive jurisdiction of this case, or the federal court has. If this court has jurisdiction, as the matter now stands it could not render a judgment that would affect the petitioners— they would not ho hound by it. They are not defendants for the purpose of exercising jurisdiction over tho subject matter of the lawsuit. * * * They are not within the jurisdiction of this court as to the subject matter of the litigation. They asked to be made defendants for one purpose only — to remove the case to the federal court. It is my opinion that only a real defendant may make the application.”
I am of tho view that the cause was not removed to the federal court, and hence the order entered appointing the receiver, if intended to be effective in the Harper Case, was without jurisdiction. Martin v. Snyder, 148 U. S. 663, 13 S. Ct. 706, 37 L. Ed. 602; Dickinson Tire & Machine Co. v. Dickinson (C. C. A.) 29 F.(2d) 493; Tennessee v. *592Union & Planters’ Bank, 152 U. S. 454,14 S. Ct. 654, 38 L. Ed. 511; Gainesville v. Brown-Crummer Inv. Co., 277 U. S. 54, 48 S. Ct. 454, 72 L. Ed. 781. If, on the other hand, it is sought to sustain the order appointing a receiver as one entered in the suit brought in the federal court, then it was improvidently entered, because the state court had already taken jurisdiction of the subject of the action and appointed a receiver of the res involved. Harkin v. Brundage, 276 U. S. 36, 48 S. Ct. 268, 72 L. Ed. 457; Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435; Wabash R. Co. v. Adelbert College, 208 U. S. 38, 28 S. Ct. 182, 52 L. Ed. 379; Moran v. Sturges, 154 U. S. 256, 14 S. Ct. 1019, 38 L( Ed. 981; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871; Lion Bonding & Surety Co. v. Karatz, 262 U. S. 640, 43 S. Ct. 641, 67 L. Ed. 1151; Farmers’ Loan & Trust Co. v. Lake St. Elevated R. Co., 177 U. S. 51, 20 S. Ct. 564, 44 L. Ed. 667; Priest v. Weaver (C. C. A.) 43 F.(2d) 57.
It follows that the order of the lower court appointing receiver should be reversed.