6 F.2d 446 | 7th Cir. | 1925
(after stating the facts as above). The appeal is from
Appeal does not lie from order of remandment (section 28 of Judicial Code [Comp. St. § 1010]), but appellant’s undertaking here is, in effect, to have held for naught the order of remandment of the cause, and much of the brief is devoted to support of the contention that the state court should have ordered the removal, and that the District Court should not have remanded the cause.
The temporary restraining order which the District Court granted was evidently in aid of its jurisdiction to hear the question whether it should hold the cause for trial or remand it to the state court. The temporary injunction, for which appellant applied, was in its essence of the same nature. Neither the restraining order nor a temporary injunction would have served any purpose after the cause was remanded to the state court, since by the very act of remandment the further jurisdiction of the District Court over the action ceased. It would seem that the remandment itself operated to vacate any injunctive order of the District Court made only for preserving the status until that court adjudicated the question of removal.
It appears to be counsel’s contention that, the lack of jurisdiction of the state court over appellant being apparent, the cause should not have been remanded, but an injunction awarded to restrain further prosecution of the action. It is sufficient answer to say that want of jurisdiction over appellant does not appear on the face of the proceedings. The asserted facts respecting the service, whereon the alleged want of jurisdiction is predicated, were controvertible, and but for the remandment a properly made issue of fact thereon would have been triable in the District Court. But the remandment, whether right or wrong, left the District Court without jurisdiction to hear and determine that possible issue, or any other issue in the cause.
Without considering appellees’ insistence that section 129 of the Judicial Code (Comp. St. § 1121), which gives appeal from interlocutory orders granting or denying injunction in proceedings in equity, can have no application to a restraining order made in an action at law, we are of opinion that, with the cause remanded, appeal from the vacation of the restraining order, and from the denial of the temporary injunction, is wholly futile, and can in no event avail appellant anything.
The appeal is therefore dismissed.