Argument for Plaintiffs in Error.

214 U. S.

and alleged that if the cattle were damaged by delay in shipment "that the fault or liability" was that "of the Texas and Pacific Railway Company in not routing said cattle as requested by the plaintiffs and as demanded by the exigencies of the shipment," and "prayed to be hence dismissed with its costs." The issue thus made up was tried by the court and resulted in a judgment against the Texas and Pacific Company and Tucker for $3,600, and a judgment against the St. Louis and San Francisco Company in favor of the Texas and Pacific Company for $1,800. All the defendants appealed to the Court of Civil Appeals for the Second Judicial District, sitting at Fort Worth. That court reversed the decision and remanded the case, holding that the trial court erred in overruling the application for removal, and entertaining jurisdiction of the case. A motion for rehearing was made and denied and the plaintiffs (defendants in error here) applied to the Supreme Court of Texas for a writ of error, which was dismissed for want of jurisdiction, but was, on motion for rehearing, granted, and on the second of May, 1906, the Supreme Court reversed the Court of Civil Appeals, deciding that the case was not removable, and remanded the case for decision on the other questions.

On the return of the case to the Court of Civil Appeals, that court, on the sixteenth of June, 1906, affirmed the judgment of the District Court. A motion for rehearing was denied, and on writ of error to the Supreme Court the latter court affirmed the judgment of the Court of Civil Appeals.

Mr. Rush Taggart and Mr. W. L. Hall, with whom Mr. John F. Dillon was on the brief, for plaintiffs in error:

The Texas and Pacific Railway Company being a corporation chartered by Congress, when sued alone in the state court for an amount exceeding $2,000, exclusive of interest and costs, has the right to remove the cause to the Federal court, and when sued with a local defendant to establish a joint liability of all defendants it is a suit arising under the Constitution

214 U.S.

Argument for Defendants in Error.

and laws of the United States, and if all defendants join in the application to remove, the cause should be removed to the United States court. See charter, 16 Stat. 573; §§ 1 and 2, act of March 3, 1875, c. 137, amended by acts of 1887 and 1888; Osborn v. United States Bank, 9 Wheat. 738; Smith v. Union Pacific Railway, 2 Dillon, 278; Pacific Removal Cases, 115 U. S. 200, 222; Texas & Pacific Railway v. Cody, 166 U. S. 606; Re Dunn, 212 U. S. 374.

Where the facts presented in a petition for removal show a cause of action properly removable from a state to a Federal court, the state court must take the facts as stated in the record and petition, and has no jurisdiction to pass upon any such questions. The right to pass upon the issues of fact made by the petition for removal is one for the Federal court, it having the exclusive province of passing upon such questions of fact. Black's Dillon on Removal, § 191; Kounts v. B. & O. Ry., 104 U. S. 5; Stone v. South Carolina, 117 U. S. 430; Burlington Ry. Co. v. Dunn, 122 U. S. 513; Daugherty v. K. C. & Ft. S. Ry., 138 U. S. 298.

Mr. Thomas D. Sporer, with whom Mr. H. C. McClure was on the brief, for defendants in error:

The plaintiff in error, after filing its petition and bond for removal, waived its right to remove by voluntarily appearing in the state court, and filing what it called its first amended original answer, by which it voluntarily impleaded and made the St. Louis & San Francisco Railway a party defendant and sought to recover a judgment over against it for damages and by recovering judgment against that defendant for $1,800. This latter proceeding was an affirmative action on its own part by which it elected to retain defendants in error in the state court, not for the purpose of defending itself, but to have the matter litigated and, at the same time, to prosecute its rights and enforce them, by obtaining a judgment of the state court against the St. Louis & San Francisco Railway Company—a party whom defendants in error had not sued.

While it is true that if the state court refused to order a removal, and retains its jurisdiction, and the petitioner is compelled to remain in the state court, he does not have to remain inactive and allow judgment by default to go against him. He has a right to remain and defend the suit against him. But there is this distinction. He can only defend. If he seeks to take affirmative action and appeal to the court for relief in order to better his condition, that is, asks for something independent of and alien to the plaintiff's case, he elects to submit to the jurisdiction of the court. After making this election he cannot insist on his removal proceeding and insist that the court has no jurisdiction to try the case. The Federal courts will not permit him to experiment with the courts or speculate with his cause of action.

He must be consistent. C. I. & N. P. Ry. Co. v. Minn. & N: W. Ry. Co., 29 Fed. Rep. 337, 341. See also: Manning v.. Amy, 140 U. S. 137; Removal Cases, 100 U. S. 457, 473; Hudson River R. R. & Term. Co. v. Day, 54 Fed. Rep. 545; Case v. Olney, 106 Fed. Rep.. 433; First National Bank of Wason v. Conway, 67 Wisconsin, 210.

MR. JUSTICE MCKENNA, after stating the facts as above, delivered the opinion of the court.

The assignments of error present the question of the right of the Texas and Pacific Company to a removal of the case to the Circuit Court of the United States, (1) Because, being a corporation chartered under an act of Congress, the suit was one arising under the laws of the United States, and that this character was not taken from it by joining a local defendant when it was an action to establish a joint liability.” (2) Where the facts stated in the petition for removal show a cause properly removable from a state to a Federal court, the state court has no jurisdiction to pass finally upon them; that right is one for the Federal court, it having the exclusive province of passing upon such questions of fact.

The first proposition is sustained in the Matter of Dunn, 212 U. S. 374; tne second proposition is sustained in Chesapeake and Ohio Railway v. Emma R. McCabe, Administratrix, 213 U. S. 207. The latter case also decides that if an application for removal be denied the petitioner loses no right by being compelled to stay in the state court. In other words, that the petitioner may stay in the state court and defend the action against him, and if the judgment go against him bring the case to this court and have the question of removal determined. But plaintiffs in error did not defend only against the cause of action. They instituted a cause of action against the St. Louis and San Francisco Railroad Company, in which the defendant in error had no concern, and recovered a judgment. against that company in the sum of $1,800. By doing so they invoked the jurisdiction of the state court on their own account and for their own purpose, and the case is brought within the ruling in Merchants Heat & L. Co. v. Clow & Sons, 204 U. S. 286.

The single question in this court in that case was the jurisdiction of the Circuit Court, from which the case came. The Merchants Heat & Light Company, an Indiana corporation, contended that no jurisdiction had been obtained over it by the service which was made upon one Schodd, who, it was asserted by the plaintiff in the action, was an agent of the company. A motion to quash the return of service was made and overruled, and thereupon the company, after excepting, appeared as ordered and pleaded the general issue, and also a recoupment or set-off of damages under the same contract sued upon, and overcharges in excess of the amount ultimately found due to the plaintiff. There was a finding for the plaintiff of $9,082.21.

Whether the company was doing business in the State of Illinois within the meaning of the statutes of that State under which service was made, this court did not decide, but it did decide that the company, "by setting up its counter-claim became a plaintiff in its turn, invoking the jurisdiction of the

court in the same action, and, by invoking, submitted to it." And this, notwithstanding the counter-claim arose, as it was said, "out of the same transaction that the plaintiff sued upon, and so to have been in recoupment rather than in set-off proper.' "It was further said: "There is some difference in the decisions as to when a defendant becomes so far an actor as to submit to the jurisdiction, but we are aware of none as to the proposition that when he does become an actor in a proper sense he submits." And the Texas and Pacific Company was an actor against the St. Louis and San Francisco Company upon a cause of action upon which it was its own choice to bring into the suit. On that cause of action it obtained a judgment against the St. Louis and San Francisco Company, and succeeded in having it affirmed by the Supreme Court of the State.

It would be carrying too far the right of a party who has petitioned for removal of a case to extend it beyond what is necessary to defend against the cause of action asserted against him. He should not be permitted to invoke the jurisdiction for affirmative relief and deny it afterwards. It must be remembered how amply his right of removal is protected. He may file the record in the Circuit Court of the United States and thereby completely take jurisdiction from the

state court.

Judgment affirmed.

MR. JUSTICE PECKHAM and MR. JUSTICE DAY dissent.