Henry Seeligson's Executors v. Texas Transportation Co.
7 S.W. 708
Tex.
1888
Check Treatment
Walker, Associate Justice.

It will be conceded that the i jurisdiction and rules of decision of the State district courts are prescribed by the Constitution and laws of the State. Any order in a case removed from the State courts to a Federal court and subsequently dismissed by it for want of legal cause , for removal—that is, for want of jurisdiction over the subject i in litigation—would therefore be only persuasive, and would i not control or limit the State court in its subsequent proceed- . ings in the case. Nor would it be expected that the Federal circuit court would attempt the exercise of control over the *201State court. It may be assumed that a court wanting-jurisdiction over the subject matter in litigation could make no other valid order than to dismiss, or to refuse to hear the case. After dismissing the case its connection with the case ceased.

The following extract from Judge Campbell’s opinion in Germania Fire Insurance Company v. Francis, 52 Miss., 466, 467, applies equally to this case as in the cause in which it was uttered: “ Where a State court grants an application for removal of a case to the United States court, it is a declension to proceed further in the cause; but when it is ascertained that the order of removal was improper, and that the United States court has not jurisdiction, the cause revives in the State court and should be be proceeded with as though no order of removal had been made. An order for removal in a cause not embraced by act of Congress has no effect in legal contemplation, and although the practical effect may be an interruption improperly of the prosecution of the cause in the State court, the cause is to be considered as having been all the time pending in the State court, which delayed to see if the United States court would take jurisdiction, and finding it would not, proceeds to try the case thus remitted to it as though no interruption had occurred.”

The authorities cited by counsel have been examined so far as accessible, and nothing has been found satisfactorily controling this view of the subject. (Calvin v. Boutwell, 9 Blatch., 473; Thatcher v. McWilliams, 47 Ga.; Germania Fire Insurance Company v. Francis, 52 Miss., 457; Ex parte State Insurance Company of Mobile, 50 Alabama; Dillon on Removals, sec. 87; U. S. Rev. Stats., sec. 639; Durant v. Essex county, 102 U. S. S. C. Rep., 555; Williams v. Bruffey, 101 Id., 248; Cook v. Burnley, 11 Wallace, 672; West v. Brashear, 14 Peters, 54.)

In this record it appears that the cause was removed from the Harris district court to the United Slates circuit court at Galveston; ■ that the circuit court dismissed the case for want of sufficient cause for removal. The dismissal was affirmed on appeal by the United States Supreme Court; the affirmance was certified to the circuit court by formal mandate. The mandate is on file in the circuit court. A certified copy of it was filed in the case in the district court on September 1, 1887, and the default was taken October 7. This copy was competent and sufficient evidence of the refusal of the circuit court to assume control of the cause. There was then no *202•-obstacle to the exercise by the State court of its jurisdiction in proceeding with the trial of the cause.

Opinion delivered March 9, 1888.

The court holds: First, that, no cause for the removal of existing, jurisdiction over the cause remained in the district court save as in fact suspended by the attempted removal. Second, • that no formal order by the circuit court relinquishing jurisdiction after the dismissal was necessary to enable the district court to resume its proceedings. Third, that a certified copy of the mandate from the Supreme Court to the United States circuit court was competent evidence of the refusal of the circuit court to take jurisdiction and fourth, upon being so informed of the action of the federal courts it devolved upon the district court to proceed with the cause as in other cases on the docket.

For the error in dismissing the cause, the judgment be low is reversed and the cause remanded.

Reversed and remanded.