It is insisted by appropriate assignments of error upon the part of appellant, that the court below erred in sustaining the defendants' motion for a new trial and in dismissing the plaintiff's suit for want of jurisdiction, upon the ground that the cause had been duly removed to the United States Circuit Court, and that the jurisdiction of the latter court over the case had attached from the time of the filing of the petition and bond of the before named defendants for a removal of the cause to said court. It is claimed that the right of removal to the Federal court was not shown by the defendants, and in fact did not exist in the present controversy under the laws of Congress, for the following among other reasons, viz.: 1. Because the judgment of the Circuit Court for the Northern District of Texas rendered in the original suit between the same parties and upon the identical cause of action as in the present action, and which was procured by the defendants, and which denied the jurisdiction of that court over the controversy, is res adjudicata, final, and conclusive of the question. 2. Because all of the defendants did not unite in the petition or join in the bond for the removal to the Circuit Court, as must be done where the sole *Page 545 ground for removing the cause or conferring jurisdiction upon the Federal court is that the controversy "arises under the laws of the United States."
As we have already stated, one of the defendants (S.C. Carroll) was not a party to the application for the removal, nor is the bond made payable to him, nor is his name mentioned therein, but it seems from plaintiff's petition that he was only a nominal defendant. He appears to have been the partner of the plaintiff, and not one of the sureties of the defendant Cabell upon his official bond, as are the other defendants. He refused to join with the plaintiffs in bringing the suit, and on this account was made a party defendant, and as the petition states, "for the purpose of binding him by the judgment which may be rendered herein." All of the parties to this suit are citizens and residents of Texas, and it was claimed by the defendants that the jurisdiction of the Circuit Court could be exercised, because the suit is one which arises under articles 784, 785, and 786 of the Revised Statutes of the United States, which prescribe the liability of United States marshals and their sureties upon their official bonds, and a rule of limitation different from that which obtains in this State. Feibelman v. Packard, 109 U.S. 421; McKee v. Brooks,64 Tex. 255; see also 66 Tex. 304. It would seem, at least under the latest enactments upon the subject by Congress, that the causes in which removals to the Federal court are contemplated are such as the Circuit Courts of the United States might have original jurisdiction of under these acts; and that where the foundation of the jurisdiction is that the suit is one arising under a law of the United States, then to justify a removal of such a suit from a State court to the Federal court all of the defendants must unite in the application. 24 U.S. Stats. at Large, p. 552; 25 U.S. Stats. at Large, p. 434; Reed v. Reed, 31 Fed. Rep., 49; Foundry Co. v. Howland, 99 N.C. 205; Dill. on Removal of Causes, sec. 80; Mayor v. Steamboat Co., 21 Fed. Rep., 593.
We are disposed to hold, however, that the latter proposition would not apply to this case, as the defendant Carroll is but a nominal defendant, and his interest, if any, in the suit is entirely distinct and separate from and in factopposed to the other defendants. Furthermore, we do not deem it necessary to decide whether the bond should have been made payable to him (regarded as one of the plaintiffs) in the view which we take of the other objection made by the plaintiff to the defendants being allowed to exercise the right of removal to the Circuit Court as before stated. We are of the opinion that the judgment of the Circuit Court entered in the first suit between the parties was a final adjudication of the right of that court to exercise jurisdiction over the same cause of action between the same parties, and was binding upon the defendants to that extent that they could not again invoke the jurisdiction of that court over the same controversy. The judgment of *Page 546 the District Court was not a mere interlocutory, but was a deliberate and "solemn" adjudication and decision of the question after a trial upon the merits of the issue before a jury. The issue was raised by the defendants themselves, who pleaded to the jurisdiction of the court, and alleged that the real and actual amount in controversy was below the jurisdiction of the court, and that the plaintiff had fraudulently overstated the amount of his damages solely for the purpose of conferring jurisdiction upon the court. The court, as we have seen, upon a full hearing sustained this plea of the defendants and dismissed the plaintiff's suit, and thus deliberately decided that the subject matter of the suit or the amount in controversy did not exceed in value $2000 — a conclusion which was confirmed by the verdict of the jury rendered at the trial below upon the same state of facts or "matter in dispute."
The decision of the question then made must be considered as final and conclusive, whether it was erroneously made or not, as it was not appealed from nor reversed, nor in anywise vacated upon a direct proceeding for that purpose. The effect of that determination as a final declaration of a court of competent jurisdiction to decide the very question at issue, and which was then directly involved, was to deprive the United States Circuit Court of jurisdiction over this particular cause of action or matter in dispute between the parties, not only as asserted in the very suit then before the court, but in any other action therein, or in another court, which might be instituted thereon between the same parties. Sweatman v. Stratton, 74 Tex. 76. When, therefore, the defendants applied for the removal of the cause to the Federal court, it appeared conclusively from the judgment of that court that the "matter in dispute" in the present suit was not within the jurisdiction of the Circuit Court of the United States, as limited by the acts of Congress.
Had the plaintiff again instituted his suit in the Circuit Court, surely that court would not have been entitled to exercise, nor would it have exercised, jurisdiction over this second suit in face of its former judgment; and as we have seen, the test of the removability of the cause is whether the Circuit Court would have had "original cognizance" of the controversy. In consequence of the former decision of that court, the amount in controversy must be considered, at least so far as affecting the question of jurisdiction, as not exceeding $2000. The case was not, therefore, removable under the acts of Congress. This result is not affected by the fact that plaintiff by his amended petition in the present suit claimed damages in excess of that amount, because the former judgment remains in full force and effect, and neither party has made any attempt, as we have seen, to cause it to be revised, modified, or set aside. Freem. on Judg., sec. 260. We think, also, that the State court had the right to consider the effect of the judgment of the Circuit Court, in passing upon the application for the removal of the cause; *Page 547 otherwise a suit could again be removed to the Federal court after the latter court had duly remanded it to the State court for want of jurisdiction. Such an experiment with the courts could be made if the party should see fit to present another application after the cause had been remanded, if the State court is powerless to look beyond the face of the pleadings and the application for removal, and can not consider the action already taken upon the matter by the Federal court. McLean v. Railway, 16 Blatchf., 3 69; but see Acts of Congress, 1887, 1888, pp. 552, 435, which make such orders of the Circuit Courtfinal. Certainly the laws of the United States do not contemplate perpetual removals of the same controversy contrary to the judgments of both the State and Federal courts, or that the State court must allow the removal in every class of cases. For this and other reasons we hold, furthermore, that the court below, having control of its own orders during the term, possessed ample authority to vacate the previous order which it had made granting the petition for removal. The defendants took no exception to this last order of the court during the term. Dill. on Removal of Causes, sec. 137. The filing of the copy of the record with the deputy clerk at Dallas, on October 21, 1889, was clearly not an appearance in the Federal court at Graham, hence the jurisdiction of that court had not in fact attached when the revoking order was entered on October 22 in the State court. Dill., 146, 147.
The case not being removable under the law, the jurisdiction of the Federal court had not attached by reason of the filing of the petition and bond. Dill. on Removal of Causes, sec. 139; Seeligson v. Transp. Co., 70 Tex. 200. In denying the right of removal, the State court in the present instance only drew that conclusion from the undisputed facts, and was not required therefore to decide any issue of fact as affecting the sufficiency of the application. In support of the conclusiveness of the judgment of the Circuit Court as rendered in the first suit upon the question of jurisdiction, we cite the following authorities: McLaughlin v. Doane, 40 Kans.., 392; Freem. on Judg., secs. 249, 255, 256, 267; Parker v. Spencer,61 Tex. 161; Hagood v. Grimes, 24 Tex. 16 [24 Tex. 16]; West v. Bagby, 12 Tex. 34; Sabrinos v. Chamberlain, 76 Tex. 624; Crane v. Blum, 56 Tex. 327; Morey v. Lockhart, 123 U.S. 56.
In McLaughlin v. Doane, supra, where the plaintiff's first suit, which was brought from a foreign judgment, had been dismissed upon a dedemurrer interposed by the defendant, on the ground that such judgment was void, it was held, in the second suit of the plaintiff upon the note upon which the foreign judgment had been rendered, that the former judgment upon the demurrer was conclusive upon the defendant and estopped him from pleading the foreign judgment in bar of the second action. Among other things the court say, that the judgment upon the demurrer was a "judgment upon the merits and disposes of the action, and that while that judgment remains unreversed it is complete *Page 548 and final." * * * The defendant "can not consider it binding as against the plaintiff and not as against himself. He insists, however, that while the court did sustain the demurrer and dispose of that judgment, yet it was possible for the plaintiff to have amended his pleadings so as to have shown that the judgment was good. We think that this claim will not avail the defendant. If he knew the judgment was good and procured the court to make and render a decision to the contrary, he can not take advantage of it here. He was willing that the court should find that the judgment was void for want of service, and he can not be heard to say that the judgment was good. He can not be allowed to play fast and loose with the court."
These observations are peculiarly applicable to the inconsistent conduct of the defendants below, in reference to the jurisdiction of the Circuit Court over the particular matter in controversy, and they should therefore be held to be estopped by their own deliberate acts and pleas in the first suit.
Our conclusion is, that the court below, and not the United States Circuit Court, had the legal jurisdiction of this suit and the right to decide the controversy, as it did do, and therefore the District Court erred in granting the new trial to the defendants and in dismissing the suit upon the ground assigned for such action. This conclusion will necessarily lead to a reversal of the judgment dismissing the plaintiff's suit, but his counsel ask us to also reinstate the former judgment of the court rendered upon the verdict of the jury in his favor. The motion for new trial contains, however, other grounds therefor than the one sustained by the court below, viz., that the court was without jurisdiction to try the cause. For this reason we think that the judgment of the District Court which dismissed the plaintiff's suit, and from which this appeal is taken, should not only be reversed but also that the cause should be remanded for another trial.
Reversed and remanded.
Adopted March 1, 1892.