| Ark. | Apr 15, 1905
(after stating the facts.) The right of removal of a cause from the State to the Federal court, so far as concerns the action of the State court, depends upon and must be determined by the condition of the record in the State court at the time the removal is sought (Chesapeake & Ohio Railway Company v. Dixon, 179 U.S. 131" date_filed="1900-11-12" court="SCOTUS" case_name="Chesapeake & Ohio Railway Co. v. Dixon">179 U. S. 131) ; and, where the alleged ground for removal is the diverse citizenship of the parties, the allegations of the petition alone can be looked to by the State court in determining the right of removal. The State court has no jurisdiction to try an issue of fact raised on the petition for removal. This can only be done by.the Federal court on motion to remand after removal. L. R., M. R. & T. Ry Co. v. Iredell, 50 Ark. 388" date_filed="1887-11-15" court="Ark." case_name="L. R., M. R. & T. Ry. Co. v. Iredell">50 Ark. 388; Moon on Removal of Causes, p. 498; Burlington, etc. Railway Company v. Dunn, 122 U. S. 514; Kansas City, Ft. S. & M. Ry. Co. v. Daughtry, 138 U.S. 298" date_filed="1891-02-02" court="SCOTUS" case_name="Kansas City, Fort Scott & Memphis Railroad v. Daughtry">138 U. S. 298; Southern Ry. Co. v. Hudgins, 107 Ga. 334" date_filed="1899-04-22" court="Ga." case_name="Southern Railway Co. v. Hudgins">107 Ga. 334; Stix v. Keith, 90 Ala. 121" date_filed="1890-11-15" court="Ala." case_name="Stix & Co. v. Keith">90 Ala. 121; Cravens v. Turner, 82 Me. 383" date_filed="1890-02-20" court="Me." case_name="Craven v. Turner">82 Me. 383.
Chief Justice Waite, speaking for the Supreme Court of' the United States in the case of Burlington, etc., R. Co. v. Dunn, supra, concisely defines the rule of practice with reference to removal of causes, as follows: “The theory on which it rests is that the record closes, so far as the question of removal is concerned, when the petition for removal is filed and the necessary security furnished. It presents then to the State court a pure question of law, and that is, whether, admitting the facts stated in petition for removal to be true, it appears on the face of the record, which includes the petition and the pleadings and proceedings down to that time, that the petitioner is entitled to a removal of the suit.”
The only question, then, which we have to determine is whether the record upon the filing of the petition showed a right of removal by appellants, two foreign corporations. There is no allegation in the complaint that the other defendant named, the Texarkana Street Railway Company, is a corporation, either domestic or foreign. The petition for removal states that the railway company is not a corporation, but is a trade name under which either Bamboff or Crquch is doing business, and that neither of those persons have been served with process, or are parties to the suit. According to these allegations, the two appellants were the only defendants to the action, and were therefore, entitled to have the causé removed. Upon this showing made by the petition, the Federal statute made it the duty of the circuit court “to accept said petition and bond, and proceed no further in the suit.” All further proceedings in that court were without jurisdiction, erroneous and void.
Appellants did not waive their right to insist upon a removal of the cause by filing answers, and contesting the suit upon its merits. Little Rock, M. R. & T. Ry. Co. v. Iredell, supra; Railroad Company v. Koontz, 104 U.S. 5" date_filed="1881-10-31" court="SCOTUS" case_name="Railroad Co. v. Koontz">104 U. S. 5; Stix v. Keith, supra.
Appellants also asked 'a removal’ of the cause upon the alleged ground that the cause of action asserted against them was separable. But, as we hold that the cause should have been removed on the ground of diversity of citizenship, these and other questions in the case urged upon our attention need not be decided.
The judgment is reversed, and the cause remanded, with directions to enter the order for removal of the cause.