17 S.E.2d 588 | Ga. Ct. App. | 1941
Where, after an order overruling a demurrer to the petition and a certification of a bill of exceptions to such judgment, the cause of action, by voluntary action on the part of the plaintiff, becomes one removable to the United States court, and where the defendant thereupon files its petition to remove the case, the State court is without jurisdiction to proceed further in the cause, and any order passed by the State court thereon is coram non judice unless the jurisdiction of the State court is actually restored. The writ of error in such case will be dismissed in the appellate court, with an order that the copy of the bill of exceptions be treated as exceptions pendente lite in the event the Federal court refuses to entertain jurisdiction and remands the case and the jurisdiction of the State court is restored.
The defendant in error asks that the writ of error be dismissed on the ground that on the removal of the case to the Federal court the State courts had no further jurisdiction. The plaintiff in error contends that the case became removable after the bill of exceptions had been certified, thereby making it impossible to file exceptions pendente lite to the order overruling the demurrers; that if the Federal court retains jurisdictions any action taken by the State courts would be of no effect, but that if the bill of exceptions is dismissed or withdrawn and the case is remanded by the Federal court to the superior court, the order on the demurrers would be final and would constitute the law of the case; and that while the Court of Appeals is without jurisdiction to render a decision in the case, it has authority to preserve the status quo by ordering that the bill of exceptions be considered as exceptions pendente lite in the trial court.
Where an action for tort is brought in a State court by a resident plaintiff against a resident and a non-resident defendant, and the plaintiff voluntarily dismisses as to the resident defendant, the cause becomes removable to the Federal court on the ground that the action is wholly between the plaintiff and the nonresident defendant. See Powers v.
Chesapeake Ohio Ry., 65 Fed. 129; Hill v. Director-General of Railroads,
While the Court of Appeals, on the removal of the case to the United States district court, could not take any further step in the case, this court is not without authority to preserve the status quo and to enter any order necessary to accomplish that purpose. In the event the United States district court does not retain jurisdiction, and for any cause remands this case to the superior court, the judgment overruling the demurrers of the non-resident defendant will be final and will constitute the law of the case, and the rights of the non-resident defendant may be prejudiced unless exceptions pendente lite are properly filed and preserved. Accordingly, this court having no jurisdiction to proceed in the case and to pass on the questions presented in the bill of exceptions, the writ of error is dismissed; but in view of the facts of this case it is ordered that the copy of the bill of exceptions on file in the office of the clerk of the superior court be treated as exceptions pendente lite in the case.
Writ of error dismissed, with direction. Sutton and Felton,JJ., concur.