H. C. Thacher & Co. v. R. P. McWilliams & Co. , 47 Ga. 306 ( 1872 )

McCay, Judge.

The Superior Court of Spalding county had, under the Constitution and laws of the United States and of this State, original jurisdiction of the subject matter, and of the parties in this case. That jurisdiction was formally invoked, and'the Court was in the actual exercise of its unquestioned powers in the premises. Under the various Acts of Congress for the removal to the Circuit Court of causes where either the plaintiff of defendant is a citizen of another State than that in which the suit is pending, proceedings were taken to remove the case to the Federal Court. The Superior Court of Spalding county passed the order required by the statute. The Federal Court refused to entertain jurisdiction of the case, and it has., therefore, never been in fact removed to the Circuit Court. It is argued, however, that as the moving party has filed his petition, bond, etc., the case is, ipso facto, taken out of the State Court, and that by the Act of Congress the State Court can “ proceed no further in the matter.” It is said that the judgment of the State Court removing it is not inferior to the judgment of the Circuit Court refusing to receive it, and that it was not in the power of the Judge of the Circuit Court of the United States to reverse the judgment of the Superior Court of Spalding county.

We will not go into the question of which of these tribunals is the inferior, or whether either of them is, though perhaps it might always be said that the Court ad quern, the Court to which a cause is to be removed, and which has it to try, must be the final arbiter as to whether it is a proper case for its jurisdiction. But, as we have said, we do not think any such matter is involved. The State Court had the jurisdiction of this case, had possession of it, and the United States Court has refused to take it. We think, ipso facto, the jurisdiction of the State Court reattaches, or rather it is never lost. The judgment of Judge Erskine is final until it is reversed by appeal. This case has never been removed. The removal is not complete until the United States has taken it, and this is, we think, the plain meaning of the removal Act. The moving party may never move in the Circuit Court, and thus the Act be a mere instrument to defeat the State Court.

Judgment affirmed.