Opinion of the Court.

236 U.S.

a nullity and the action of the state courts amounts to a refusal to give effect to a valid existing judgment of a United States court.

Mr. E. Elmer Mitchell, Mr. L. T. Shangle, Mr. D. C. Waggoner and Mr. J. N. McCoy for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

The defendant in error, as Administrator of Martin W. Lockhart, deceased, brought an action on September 22, 1905, in the District Court of Iowa in and for the County of Mahaska, to recover damages for the alleged wrongful killing of his intestate. In the petition it was alleged that the estate had been damaged in the sum of $10,000, but judgment was asked only for the sum of $1,990. On September 30, 1905, the Railway Company filed its answer, and on October 2, 1905, within the time required by law, filed a petition for removal of the cause to the United States Circuit Court in and for the Southern District of Iowa, on the ground of diversity of citizenship, alleging that the amount in controversy exceeded, with interest and costs, the sum of $2,000. The petition was accompanied by a bond.

The District Court of Mahaska County did not enter any order directing the removal of the case, but on March 29, 1906, there was filed in the office of the Clerk of the United States Circuit Court for the Southern District of Iowa a transcript of the proceedings in the case. After the filing of the transcript in the Federal court, the case was continued from term to term, until, on December 5, 1908, an order to notice said case for trial at the next term or show cause why it should not be dismissed was entered, and the Clerk was directed to mail and serve a copy of said order on the parties. On May 11, 1909, the Circuit Court of the United States entered an order dismissing the cause

for want of prosecution at the plaintiff's costs, and the defendant was given judgment for its costs.

Afterwards, on September 19, 1910, the plaintiff filed in the office of the District Court of Mahaska County an amended and substituted petition. On October 6, 1910, the District Court entered an order, denying the application of the defendant for a removal of the cause to the United States court on the ground that the amount in controversy, exclusive of interest and costs, was less than $2,000. The application for removal was the one filed on October 2, 1905. On February 28, 1911, the Railway Company filed a motion to dismiss the case and to strike from the files all pleadings filed subsequent to September 1, 1905, on the ground that the case had been removed to the United States Circuit Court. Attached to the motion was a certified copy of the record in the United States court. This motion was denied and afterwards the case went to trial in the state court, and upon verdict of the jury a judgment was rendered against the Railway Company. The case was taken to the Supreme Court of Iowa and that court affirmed the judgment of the lower court. (157 Iowa, 493.) The case was brought here, and the Federal question presented is whether the state court had lost its jurisdiction by the attempted removal to the United States Circuit Court.

It was of course essential to the removal of the case that the amount in controversy should have been sufficient to give the Federal court jurisdiction; that is to say, $2,000, exclusive of interest and costs. The state court had authority to determine the effect of the prayer to the petition and it decided that, under the petition, no more than the amount prayed for could be recovered in the action, notwithstanding the statement that the estate had suffered damage in the sum of $10,000. It is contended that, nevertheless, the proceedings in this case show that the case was removed to the United States Circuit Court, and in

asmuch as the state court lost jurisdiction, its subsequent proceedings are null and void.

In Traction Company v. Mining Company, 196 U. S. 239, this court said, citing many previous cases, that certain principles relating to the removal of causes had been settled by the former adjudications of the court. One is that if the suit be one in which the Circuit Court could rightfully take jurisdiction, then upon the filing of the petition for removal in due time, with sufficient bond, the case is in law removed, and the state court loses jurisdiction to proceed further and all subsequent proceedings therein are void. Furthermore, that if, upon the face of the record, including the petition for removal, the suit does not appear to be removable, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made. See also the previous cases in this court cited in the Traction Company Case, at pages 244 and 245.

Applying these principles, it is apparent that the case now under consideration was not upon the face of the record a removable one. The prayer for recovery was for $1,990, and consequently the amount required to give jurisdiction to the Federal court was not involved. The filing of the petition and bond did not therefore effect a removal of the case.

But it is contended that this case is governed by Chesapeake & Ohio Ry. v. McCabe, 213 U. S. 207, because the United States court had determined, as it had authority to, that the case was a removable one, and that so long as that judgment stood, the state court had lost its jurisdiction, and had no power to proceed further in the case. In the McCabe Case, where the state court refused to order the removal of the case upon a transcript being filed, the Federal court held that it had jurisdiction in the case and proceeded to render a judgment therein; and when this adjudication was brought to the attention of the state

court, it refused to give it force, and proceeded to adjudge the case upon its own view of jurisdiction. This court held that the state court was bound to give weight to the judgment of the Federal court deciding that it had jurisdiction, and that the judgment, until reversed, was conclusive upon the state court as to the jurisdiction of the Federal court.

But no such case is presented here. The Federal court, it is true, more than once made an order continuing the case, and finally dismissed it for want of prosecution. The question of its authority to take jurisdiction was never presented or decided in the Federal court, and there is nothing in the orders made conclusive of that question in such sense that the state court was bound to respect it.

As the record upon its face made no case for removal the state court was right in retaining its jurisdiction, and proceeding to determine and adjudge the case. The judgment is

Affirmed.

AMERICAN CAR & FOUNDRY COMPANY v. KETTELHAKE.

ERROR TO ST. LOUIS COURT OF APPEALS, STATE OF MISSOURI.

No. 138. Argued January 20, 1915.-Decided Febuary 23, 1915.

Where there is a joint cause of action against defendants resident of plaintiff's State and a non-resident defendant, in order to make the case removable as to the latter because of the dismissal as to the former, the discontinuance as to the resident defendants must have been the voluntary act of the plaintiff and have so taken the resident defendants out of the case as to leave the controversy one wholly between the plaintiff and the non-resident defendant. Under the practice in Missouri, when the court has sustained demurrers by some of the defendants and allowed plaintiff to take an involun

Opinion of the Court.

236 U. S.

tary non-suit as against them with leave to set it aside, the case is not then ended as against those defendants, nor is it until after affirmance by the appellate court or the expiration of plaintiff's time to appeal; the controversy does not become one solely between the plaintiff and the other defendants, and even if the latter are nonresidents of plaintiff's State the case is not removable as to them. Powers v. Chesapeake & Ohio Ry., 169 U. S. 92, distinguished. 171 Mo. App. 528, affirmed.

THE facts, which involve questions regarding removal from the state to the Federal court where the cause of action has been dismissed after trial as to all the defendants, resident of the same State as plaintiff, are stated in the opinion.

Mr. William R. Gentry, with whom Mr. M. F. Watts and Mr. Edwin W. Lee were on the brief, for plaintiff in error.

Mr. George Safford for defendant in error.

MR. JUSTICE DAY delivered the opinion of the court.

Agnes Kettelhake was the widow of one Frank Kettelhake, who had been in the employ of the American Car & Foundry Company (hereinafter called the Car Company) at Saint Louis, Missouri. She brought her action to recover for the negligent killing of Kettelhake by the movement of a certain train of cars operated by the Car Company in the yard adjacent to its plant whilst Kettelhake was working under an unfinished car. Her action was brought in the Circuit Court of the City of Saint Louis, and the Car Company, a New Jersey corporation, William W. Eilers and Quincy Martin, citizens of Missouri, as was the plaintiff, were made joint defendants. It is conceded that the action was properly brought jointly against the Car Company and the defendants Eilers and Martin. The negligence charged was in substance that the defend