6770

#### GIBBES MACHINERY CO. v. SANTEE CYPRESS LUMBER CO.

Removal of Causes. — All issues of fact raised by the petition for removal must be tried in the Circuit Court, but the State Court may determine for itself whether, on the face of the record, a removal has been effected. *Held*here the amount in controversy does not exceed $2,000, exclusive of interest and costs, and cause is not removable.

Before Prince, J., Richland,

May, 1907.

Affirmed.

Motion to accept removal bond and petition in Gibbes Machinery Co. v. Santee River Cypress Lumber Co. From! order refusing to recognize removal, defendant appeals.

*Messrs. Smytke, Lee &*Frost, for appellant,

cite: *State Court .can not inquire into questions of fact raised in petition:*150 F. R.,807; 138 U. &, 298; 50 F. R., 851; 88 F. R., 803; 138 U. S., 298. *Petition Stating case for removal, case is ipso facto removed:*16 Pet., 97; 19 Wall., 214; 103 U. S., 485; 104 U. S., 5; 18 Stat. U. S., 470; 150 Fed., 801; 50 Fed., 851; 42 Am. Dig., Secs. 175-193; 45 F. R., 657.

*202*Messrs. D. W. Robinson*and *Thomas & Thomas,*contra,

cite: *After filing petition State Court can only pass on issue of law:*151 Fed., 805; *77*S. C., 103; *4*Fed. Stat. Ann., 364; 151 Fed., 804. *On face of record, case is not removes ble:*200 U. S'., 215; 132 U. S., 599; 78 C. C. A., 360- 77 C. C. A., 258- 103 U. S., 412; 151 U. S., 66; 75 C. C. A., 629. *Right of State Court to pass on record:*69 Fed., 850'; 117 U. S., 430- 122 U. S., 513; 77 S. C., 103; 131 U. S., 240- 138 U. S., 298. *Smn demanded in complaint governs wiless there is something clearly showing contrary:*108 U. S-, 165; 18 Eney. P. & P., 270; 4 Fed. Stat. Ann., 273-4; 55 Fed., 439; 204 U S., 642- 68 U. S., 337; 93 U. S-., 241; 62 Fed., 500; 170 U. S., 472; 132 U. S., 57-1; 18 En'cy. P. & P., 229; 3 Dab, 405; Hughes’ Fed. P'roc., 202; 161 U. S-, 98- 44 Fed., 647; Moon on Rem., Sec. 88, 170; 79 Fed., 132. *'Cowiiter-clatim can not confer jurisdiction:*Moon on Rem., Sec. 98; 45 Fed., 705; 105 Fed., 658; 44 Fed., 647; 6 Fed, 654; 120' U. S., 630. *On motion to remand, Federal Court would not inquire into the truth of allegations in findings:*Foster’s Fed. Pr., 963, 964; 200' U. S., 215; 79 C. C. A., 265; 149 Fed, 321; 18 Eh-cy., P. & P., 378; 105 Fed., 658; Moon on Rem., 173.

February 26, 1908.

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an' appeal from an order of his Honor, Judge.Prince, which isas follows:

> “The defendant in the above entitled case has filed his petition and bond, for the removal of this- case toi the Circuit Court of the United States, for the District of South Oan> lina, and makes application for an order accepting the said petition and bond, and directing the 'cause fi> be removed.

> “It appears upon the record in the State Court that the amount in controversy is less that two thousand ($2,000.00) dollar's. The plaintiff seeks to recover a money judgment against the defendant, and the right of removal is determined by the amount.in controversy as appears by' the record in the *203State Court, unless an issue of fact is raised in the petition. The petition refers to the matter in dispute as ‘being more than two thousand ($2,000.00) dollars, exclusive of interest and costs,’ but there are no facts stated controverting the facts as ta the amount in controversy- 'as set forth in the complaint in the State Court. Therefore, there being no issue of fact raised, the State Court is at liberty .to, inquire whether on the face of the record a case has been made which requires it to proceed no further. *Carson*v. *Hyatt,*118 U. S., 279; *Smith*v. *W. U. T. Co.,*79 Fed., 132; *Vance*v. *Vandercock,*170 U. S., 473; 42 L. Ed., 1113.

> “It appearing, therefore, upon the record as presented, that the amount in controversy is less than, two thousand ($2,000.00) dollars, I hold 'that it is- hot ‘the duty of the State Court to accept said' petition and bond and proceed' no further in such suit.’ It is, therefore, ordered and adjudged accordingly, 'and the petition for order of removal is refused.”

The appellant’s exceptions are 'as follows:

First. “Because it is respectfully submitted that his Honor erred in inquiring into the question of fact as to the jurisdictional amount of more than two thousand ($2,000.00) dollars, exclusive of interest and costs, inasmuch as the United States Circuit Court alone can inquire into this.

Second. “Because it is respectfully submitted that his Honor erred in holding that the amount in controvery was less than two thousand ($2,000.00) dollars.

Third. “Because bis Honor erred in not bolding that the amount in controversy Was more than' two thousand ($2,000.00‘) dollars, exclusive of interest and costs.

Fourth. “Because it is respectfully submitted that his Honor should have held that it was the duty of the State Court to accept the petition and bond and proceed no further in such suit, and that he erred in not holding this.”

The first and fouth exceptions will be considered together. These exceptions are disposed of by the case of *Stone*v. *South Carolina,*117 U. S., 430, 432, in which the Court uses *204this language: *“A*State Court is not bound to surrender its jurisdiction of a -suit on a petition for removal, until a case has- been made which on its fa«cq shows that the petitioner has a right to the transfer. *Yulee*v. *Vose,*99 U. S., 545; Removal Cases, 100 U. S., 474. It is undoubtedly- true, as Was said ini *Steamship Co.*v. *Tugman,*106 U. S., 122, that upon the filing of- ;the petition and bond, the suit being removable under -the statute, the jurisdiction of the State Court absolutely ceases,,and that of the Circuit Court «of the United States immediately attaches, but «still, iasi ‘the -right of removal is statutory, before a party -can avail himself of it, he must «show upon the record «that his is -a case which comes within the provision of the statute. As was said in *Ins. Co.*v. Pechner, 95 U. S., 185, ‘his petition for removal when filed -becomes a part of «the reco«rd ;in the «cause.’ It should state facts which, when taken- in connection with -áulch as already ap'pear, entitle «him to the transfer. If it fails in this he has not, in law, shown to the Court that it «can not ‘proceed further with-the suit.’ -Having once acquired: jurisdiction, die -Court may proceed until it has been judicially informed that its power over «the cause has 'been suspended. The mere filing of -a petition for the removal of «a suit which is noit removable, d«o«es not Work a transfer. To accomplish this the suit must be one that -may be removed, and the petition «must show a right in the petitioner to demand the removal. * * *

“All issues oif facts made upon- the petition for removal must -be tried in- the «Circuit Court, but the State Court i«s; -at liberty to «determine for itself Whether, on th'e face of the record, a remloval has; been «effected. If it decides against the removal and proceeds- with' the cause notwithstanding the petition, its ruling on that question will' be review-able here, after final' judgment, under Section 709 of the Revised' Statutes.”

We proceed- next to consider tire second and third exceptions.

*205The petition merely alleges in general term's that the petitioner is the defendant in -the cause herein, which it alleges is a suit of a -civil nature -involving a 'Controversy between citizens oif different States, and the matter and the amount in dispute isi more than two' thousand dollars, exclusive of interest and costs.

The -complaint alleges- that .the plaintiff sold toi the defendant a gasoline marine engine at the price of $3,900'.0'0 and -some other items amounting to- $134.11, aggregating $1,034.11, that upon th-i-s indebtedness the -sum of $1,000'.00 was paid one timle and $50-.0-0 at another time, leaving -a bal-ance due -at the -time the action was commenced of $1,984.11. Under these -circumstances we fail to see lno-wi it can be successfully contended that -the am-o-unt in controversy exceeded $3-,000.00', exclusive of interest and costs, as shown ■by the record.

It is the judgment of -this- Court, that the order of the Circuit Court be affirmed.