Jackson v. Alabama Great Southern Railroad

| Miss. | Apr 15, 1881

Campbell, J.,

delivered the opinion of the court.

The Circuit Court of Lauderdale County, having approved the bond of the petitioner, offered as “ surety for his entering in” the Circuit Court of the United States for the Southern District of Mississippi the copies required by sect. 639 of the Revised Statutes of the United States, determined to pro.ceed no further in the cause, and from this an appeal was ¡taken to this court.

The question arises, whether an appeal could be taken in the ■case stated.' That depends on whether the determination to proceed no further in the cause is a final judgment, and that ■depends on whether the Circuit Court of the United States will take cognizance of the cause as properly removed to it from the Circuit Court of Lauderdale County. If the Circuit ■Court of the United States shall refuse to take cognizance of it, as having been improperly removed, it will be a pending cause in the Circuit Court of Lauderdale County, and be proceeded with as if no effort to remove it had been made. In such case there is a mere pause by the State court, caused by the belief of the judge that the act of Congress for the removal of the case has been complied with, to ascertain if the ■court of the United States has jurisdiction of the case. If it has, it will proceed with the case; if not, it will decline to ■do so, and remit the cause to the State court, where it will be proceeded with as if this interruption had not occurred. Germania Ins. Co. v. Francis, 52 Miss. 457" court="Miss." date_filed="1876-04-15" href="https://app.midpage.ai/document/germania-fire-insurance-v-francis-7984696?utm_source=webapp" opinion_id="7984696">52 Miss. 457.

The State court must decide in the first instance upon the ¡application to remove a case, so as to determine whether it will proceed no further in it, and should not pause in it except when satisfied that the application to remove brings it within the act of Congress on the subject; but the ultimate decision of that question rests with the courts of the United States, whose law is in such matter to be interpreted and enforced.

We must indulge the presumption that the court of the United States will properly decide the question of jurisdiction of the cause, which question directly involves the rightfulness of the removal of the cause from the State court. If it shall take cognizance of the cause, no view which we might take of the impropriety of its action would affect it: and if it shall decline to take cognizance of the cause, it will thereby revive from its dormancy in the court of the State, and be proceeded with as having been pending there all the time.

The right to remove causes from the courts of the State is given by statutes of the United States. The construction of these statutes is the province of the courts of the United States, which, when authoritatively made, should be accepted by the courts of the States, as the construction by the courts of the State of its statutes aré to be accepted as authoritative, by the courts of the United States.

It would present an embarrassing state of case if this court should decide that the Circuit Court of Lauderdale County improperly refused to proceed further in this cause, and should reverse its action and remand the cause, for it to proceed regardless of the petition and “ surety ” offered and approved for the removal of the cause, and the Circuit Court of Lauder-dale County should proceed in the cause, and the Circuit Court of the United States should take cognizance of the cause and try it, and its action in doing so should be maintained by the-Supreme Court of the United States.

It is certain that the cause cannot be lawfully proceeded in in both courts. It is rightfully in one or the other. It is for the court of the United States to decide whether the Circuit. Court of Lauderdale County did right to proceed no further.. That decision will be made by its action in assuming jurisdiction of the cause as rightly removed, or in refusing to do so, whereby the obstacle to further proceeding in the Circuit Court of Lauderdale County will be removed, and that court will proceed in it.

We conclude that the determination of the Circuit Court of Lauderdale County not to proceed further in the cause is not a final judgment from which an appeal could be taken to this court. It is a mere pause, on grounds held sufficient by the Circuit Court, but which may at any time be determined by a tribunal over which neither the Circuit Court of Lauderdale County nor this court has any control,' in which event it will be the duty of said Circuit Court to proceed in the cause to Unal judgment. It is a suspension of the proceeding, which may be final or only temporary, as the Federal question involved may be disposed of by the Federal judiciary, whose province it is to decide and act on it.

We dismiss the appeal.