121 So. 116 | Miss. | 1929
On the return day the said principal defendant filed in the said chancery court a petition for the removal of the case to the federal court. The petition was allowed and the order of removal was made. When the federal court convened, appellee, the complainant, moved to remand, but the motion was overruled. Thereupon the said nonresident defendant moved in the said federal court to quash the process as to it, which motion was sustained, and the said defendant was dismissed without day. Although the principal defendant was thus out of the case, it appears that nevertheless the federal court attempted to proceed, and went even so far as to have the testimony taken and reported by a master, but, seeing at last that the court in the situation in hand could do nothing, an order was finally made remanding the cause to the chancery court.
It is not seriously insisted that the aforementioned attempted service on the said principal defendant was valid; but the contention is that the appearance in the chancery court for the purpose of removal, although for that sole purpose, constituted a general appearance, so that, *426 when the case was subsequently remanded by the federal court, the said defendant was thereupon and thereafter in the said chancery court without the necessity of any process or further process. The chancery court sustained this view, entered a decree proconfesso against the said principal defendant, and on final hearing granted a decree against all the defendants.
We are therefore at the threshold confronted with the proposition whether an appearance in a state court for the sole purpose of taking the statutory steps for the removal of a cause to the federal court — the defendant doing no more or further than that — shall be deemed such an appearance that, when the cause is remanded, the defendant is then in the said state court without necessity of valid process.
Since the right of removal to a federal court is one granted by federal statutes under the Federal Constitution, and which therefore becomes a right supreme to that which in anywise might be attempted to be provided to the contrary by any state statute or rule of procedure, "it is extremely desirable," as was said inRailroad Co. v. Lyon, 99 Miss. at page 197, 54 So. 731, 34 L.R.A. (N.S.) 234, Ann. Cas. 1913d 800, "that, upon questions of this sort, this court would be bound to follow the United States supreme court." The latter court has repeatedly answered the above stated proposition in the negative; and we hereby announce our alignment with those decisions. In the very latest case on the subject, Michigan Cent. R.R. Co. v. Mix et al., 49 S. Ct. 207, 73 L.Ed. ___, decided by the supreme court of the United States on February 18, 1929, it is distinctly stated that "the contention that filing the petition for removal to the federal court was equivalent to the entry of a general appearance is obviously unsound" — citing General Investment Co. v. LakeShore Ry. Co.,
It was not intended to be held otherwise in Britton v.Beltzhoover,
It follows from what we have said that we can go no further with the case at bar — the principal defendant is not in court. We must reverse the decree and remand the cause to be proceeded with henceforth as the parties may deem to their respective interests under the law; and, that they may be entirely unhampered by anything which might turn out to be merely advisory on our part, we express ourselves upon no other phase of the case either as it now stands or in any attitude in which, as foreshadowed by the course of argument here, it may be caused to stand in subsequent pleadings and on the hearing thereunder.
Reversed and remanded. *428