#### W. B. HIGSON and Wife v. NORTH RIVER INSURANCE COMPANY.

(Filed 21 September, 1910.)

1. Removal of Causes — Diverse Citizenship — Jurisdiction—Procedure.

The petition and bond to remove a cause from the State to the Federal court qn the ground of diversity of citizenship must be presented in the former court before the judge ’in term, when the answer is due, and failure of plaintiff to move for judgment by default does not extend the time therefor.

2. Same — Order of Federal Court.

A copy of a petition and bond for removal of a cause from the State to the Federal court on the.ground of diversity of citizenship, addressed to the Federal judge, and originally filed in the Circuit Court of the United States, together with a copy of his order for the removal of the cause, which was filed with the clerk of the State Superior Court, is not a compliance with the Removal Act and does not oxserate to remove the cause from the State court.

3. Same — Record.

The right of removal of a cause from the State to the Federal court for diverse citizenship is purely statutory, and before the jurisdiction of the State court can be disturbed, it must appear affirmatively that a proper petition and bond has been in due form and time presented to the State court; and an order of the *36Federal judge merely filed with the clerk of the State court removing the cause upon petition and bond filed in the Federal court is ineffectual.

4. Removal of Causes — Jurisdiction—Acquiescence.

Appearing in the Circuit Court of the United States before the judge and moving to remand a cause ordered removed by him on the ground of diverse citizenship is not a recognition of the juris-' diction and power of that court to make the order. :

5. Removal of Causes — State Court — Pleadings — Judgments—Default and Inquiry.

A judgment by default and inquiry for the want of an answer will not be disturbed on appeal, for the reason that defendant had not filed his answer relying upon an ineffectual order of the Federal court that the cause be removed for diverse citizenship.

6. Process — Original Destroyed — Copy — Removal of Causes — Admissions.

The defense to a judgment by default and inquiry that the original summons had been destroyed by fire and no copy substituted, is not available when the defendant admitted in his petition to remove.the cause for diverse citizenship, filed and moved on too late in the State court, that it had been made a party defendant to the action.

Appeal by defendant from Peebles, J., at May Term, 1910, of Pitt.

Civil action pending in the Superior Court of Pitt County and heard upon motion for judgment by default and inquiry. No answer has been filed, but on the 23d of April, 1910, defendant filed a petition and bond for removal to the Circuit Court of the United States, which at the hearing before Judge Peebles was urged in bar of the judgment by default. Upon the hearing his Honor rendered the following judgment: This cause coming on to be heard before Honorable R. B. Peebles, Judge presiding at the May Term of Pitt County Superior Court, 1910, upon the motion of attorneys for plaintiff for judgment by default and inquiry for want of an answer on the part of defendant, and the same having been argued fully by Messrs. Skinner & Whedbee, attorneys for plaintiff, and it appearing to the court that summons in this action issued 11 September, 1909, and served 14 September, 1909, and that thereafter complaint was filed 9 December, 1909, and that since the issuance of the sum*37mons in this cause there have been civil terms of Pitt County Superior Court as follows, to-wit.: 13 December, 1909; 24 January, 1910; 21 March, 1910, and 2 May, 1910, and that no answer has been filed to the complaint filed in this cause, and at none of the terms of said court, nor at any other time has the defendant in the above-entitled cause made any motion or obtained any leave of record to file answer, and that the defendant, up to the 23d day of April, 1910, never filed any bond or made any motion for the removal of this cause from this court. The 2 May term only held for one day, and the petition was not called to the attention of the court, and the judge announced that he would remain as long as there was anything he could do: It is therefore ordered, adjudged and decreed by the court that the plaintiff W. B. Higson is entitled to recover of the defendant in this action on account of the matters and things alleged in the complaint; and it is further ordered that a jury come at •.a subsequent term of this court to assess the amount of the damages that the plaintiff is entitled to recover of the defendant company by reasonr of the matters and things alleged in the complaint.

And.this cause is retained for further orders.

R. -B. Peebles, Judge Presiding.

From the judgment rendered the defendant appealed.

Harry Skinner for plaintiff.

Moore & Long, Tillett & Guthrie for defendant.

Brown, J.,

after stating the case. It appears to be settled by both the Federal and State courts in numerous decisions based upon petitions to remove causes pending in State courts upon the ground of diverse citizenship, that the jurisdiction of a State court over a removable case terminates upon the timely filing therein of a proper petition and bond for its removal to a circuit of the United States. Natl. S. S. Co. v. Tugman, 106 U. S., 118; Stone v. State of South Carolina, 117 U. S., 430; Winslow v. Collins, 110 N. C., 121.

It is equally well settled that the State court is not bound to surrender its jurisdiction unless the petition shows upon its *38face á removable cause founded 'upon diverse citizenship, and unless such petition and an accompanying bond are filed in the State court within the time required by the acts of Congress of 1887-1888. R. R. v. Daughtry, 138 U. S., 298; Stone v. State, 117 U. S., 430; Howard v. R. R., 122 N. C., 944; Corp. Commission v. R. R., 151 N. C., 447; Moon on Rem., sec. 156.

The statute is imperative that the application to remove must be made to the State court when the answer is due, and although the plaintiff does not then move for judgment by default it cannot be held that he thereby extends the time for removal. R. R. v. Daughtry, supra; Moon, sec. 156. Mr. Moon says: “A plaintiff may even stipulate that defendant shall have further time to answer without plaintiff thereby consenting that a petition for removal may be filed after the time limited therefor has expired.” Again the same author says: “The better reason, if not the weight of authority, sustains the theory that the State court in which a suit is pending cannot by order extending the time for the defendant to answer, or otherwise, enlarge the time within which a petition for removal may be filed.” In support of the text the author cites a great array of decided cases from the Federal courts, p. 446.

Referring to this construction of the act, Judge Sanborn says: “It secures uniformity in the practice, prevents delays and I think is in accord with the evident intention of Congress. It was not within any time that a defendant might procure to be given him. by the court or his opponent, but within the time fixed by the statute, that Congress intended the petition should be filed.” Gold Mining Co. v. Hunter, 60 Fed., 305; Howard v. R. R., 122 N. C., 944, and cases cited.

The fact that the courthouse of Pitt County was burned on 24 February, 1910, yihen the original summons and complaint in this cause were destroyed, cannot help the defendant.

The complaint was filed 9 December, 1909. Civil terms of the Superior Court convened on 13 December, 1909, and 24 January, 1910. At neither of those terms did the defendant offer to file the petition and bond for removal, but waited until long after the time for answering had expired.

It is true the defendant filed with the clerk of the Superior *39Court of Pitt County on 24 January, 1910, a copy of a petition and bond for removal of tbis cause, but it was a copy of a petition addressed to the judge of the United States Circuit Court for the Eastern District of North Carolina and filed in that court praying the Federal judge to order a removal of this cause to that court. This copy was attached to a copy of an order of said judge directing the clerk of the Circuit Court to cause a copy of such petition and his order to be forwarded to the Superior Court of Pitt County to the end that said record' may be certified to the Circuit Court of the United States.

It was not an original petition for removal addressed, as it should be, to the judge of the Superior Court of Pitt County (as the petition filed 23 April was addressed), but only a copy of a proceeding commenced originally in the Circuit Court of the United States and delivered to the clerk of the Superior Court of Pitt County. Nevertheless, treating it as an original petition for the sake of argument, it was not filed- within the time required by law nor presented to the Superior Court in term.

The time for answering according to our statute expired with the term convening 13 December, 1909, and a filing with the clerk of a petition and bond for removal is not a presentation to the judge in term as is required. Ry. Co. v. Roberts, 141 U. S., 690; Howard v. R. R., supra; Shedd v. Fuller, 36 Fed., 609; Roberts v. Ry. Co., 45 Fed., 433. It is further contended that the order of the district judge had the effect to remove the cause into the Circuit Court of the United States and to oust the jurisdiction of the State court.

We cannot concede this, and with entire respect for the learned judge, must hold that his order cannot have the effect to terminate the jurisdiction of the State court.

If the removal proceeding were founded in the local prejudice act of Congress we should willingly concede that his order lawfully transferred the cause to the Circuit Court.

But where the ground of removal is solely that of diverse citizenship, as we understand the law, the Circuit Court has no authority to order a transfer of the cause, especially when at *40tbe time no petition and bond bas been presented to tbe State court, as was tbe case bere.

Tbe right of removal for diverse citizenship is purely statutory, and before tbe jurisdiction of tbe State court can be disturbed it must appear affirmatively that a proper petition and bond bas been in due time presented to tbe State court, when, as said by Chief Justice Waite, in Stone v. South Carolina, 117 U. S., 430: “Tbe State court is at liberty to determine for itself whether on tbe face of tbe record a removal bad been effected.” Tbe learned Chief Justice then proceeds to say: “If it decides against removal and proceeds with tbe cause, notwithstanding the petition, its ruling on that question will be reviewable bere after final judgment under sec. 709 of tbe Revised Statutes (citing several eases). If tbe State court proceeds after a petition for removal it does so at tbe risk of having its final judgment reversed, if tbe record on its face shows that when tbe petition was filed that court ought to have given up its jurisdiction.”

Tbe act of Congress does not confer upon tbe lower Federal courts tbe power to order removal of causes on account of diverse citizenship, as it does in tbe local prejudice act, but tbe removal proceeding must commence in tbe State court by filing tbe petition and bond there.

At tbe time Judge Connor’s order was made, 10 January, 1910, no petition or bond bad ever been filed in tbe Superior Court of Pitt County, either presented to tbe judge or filed with tbe clerk, and that court bad not been asked to surrender its jurisdiction.

We fail to find any authority, State or Federal, which sustains tbe action of tbe Circuit Court under such circumstances, and its order cannot have tbe effect to oust tbe jurisdiction of tbe Superior Court of Pitt County. “A State court is not ousted of its jurisdiction of a case by unauthorized proceedings taken for removal of tbe same ease to a Federal Court.” Johnson v. Wells Fargo Co., 91 Fed. Rep., 1; Tevis v. Pallentine Insurance Co., 149 Fed. Rep., 560.

Tt is contended that tbe plaintiff’s counsel appeared in tbe *41Circuit Court and moved to remand to tbe State court, and tbat sueb action is a recognition of tbe Circuit Court’s jurisdiction and power to make tbe original order.

We are unable to see bow any action of plaintiff’s counsel can confer on a court a jurisdiction not conferred by law, but we would regard a motion to remand as ratber in tbe nature of a challenge to tbe jurisdiction of tbe Circuit Court to make tbe order of removal rather than submission to or recognition of it. Tbe motion was doubtless made to prevent an unseemly conflict between the State and Federal courts.

Had tbe defendant pursued the usual and orderly procedure, tbe petition and bond would have been presented to tbe Superior Court in term, and if tbe judge' determined tbat on tbe face of tbe record a removal bad not been effected, tbe defendant could have appealed to this court, and if necessary had its judgment reviewed by tbe Supreme Court of tbe United States, and thus preserved its right to answer until tbe right of removal bad been finally adjudicated. On the contrary, the defendant chose to commence its removal proceedings originally in tbe Circuit Court and declined to file its answer to tbe complaint in tbe State court.

There was nothing left for the State court to do but grant tbe plaintiff’s motion for judgment by default and inquiry.

Tbe point is made tbat a judgment by default cannot be lawfully rendered in tbe absence of a summons substituted in place of tbe original served on defendant 14 September, 1909, and destroyed by fire. This is not necessary, as tbe defendant admits, when it filed its petition for removal on 28 April, tbat it bad been made a party defendant to this action. This is not only admitted by tbe act of filing itself, but it is expressly stated in tbe petition tbat tbe summons has been duly served on defendant.

Nevertheless tbe substituted summons has been filed in tbe record by leave of this Court since tbe argument.

The cause is remanded to the Superior Court of Pitt County with instructions to execute tbe inquiry, and otherwise proceed as tbe law directs.

Affirmed.

*42Clark, C. J.,

concurring. Tbe great bulb of court business under our system of government is necessarily in tbe State courts. Tbe Federal courts bave a restricted jurisdiction wbicb is limited to matters marked out by tbe United States Constitution. So true is tbis that in all actions in a Federal court it is presumed that tbe court is without jurisdiction until tbe contrary affirmatively appears. Robertson v. Cease, 97 U. S., 646; 11 Cyc., 855. In those instances of concurring jurisdiction in wbicb, notwithstanding a State court has first taken jurisdiction, tbe Federal Judiciary Act permits a removal into tbe Federal, such removal is permissible only when tbe motion is made in apt time, and in all respects complies with tbe requirements of tbe act of Congress. Whether it does so comply is a matter wbicb tbe State court is competent to judge, as well as tbe United States Court, tbe Federal Supreme Court being tbe final arbiter. Stone v. South Carolina, 117 U. S., 430; Lawson v. R. R., 112 N. C., 397; Baird v. R. R., 113 N. C., 608; Howard v. R. R., 122 N. C, 954; Beach v. R. R., 131 N. C., 399.

A writ of error lies from a State Supreme Court to tbe United States Supreme Court, though even tbis was strenuously denied in tbe early history of tbe Court. But there is no superiority or inferiority between tbe State Superior Court and tbe Federal District and Circuit Courts. They are co-ordinate courts, just as tbe State Superior Courts are between themselves. Tbe right to remove eases from tbe State court to tbe Federal court argues no superiority in tbe latter over tbe former, but only indicates that in tbe purview of tbe Federal Constitution and laws, tbe nature of tbe case is such that tbe defendant is entitled to bave it tried in tbe Federal court, but only when tbe defendant has made bis motion within the time and in tbe manner prescribed by tbe statute.

It is not inappropriate to say tbis much, as tbe learned counsel for defendánt, in bis argument here, spoke of tbe writ going “down” from tbe Federal Circuit Court to the State Superior Court. “Words,” said tbe great orator Mirabeau, “are things,” and in matter touching tbe jurisdiction of courts there should be entire accuracy of thought and speech. Tbe jurisdiction of tbe Federal courts below tbe Supreme Court, as well as their *43existence, is entirely statutory, created originally by the Judiciary Act of 1789 and modified by statutes since, and subject to further modifications, but not to exceed the limits marked out by the United States Constitution. U. S. v. R. R., 98 U. S., 569.

The United States Supreme Court alone is not a legislative creation, and therefore it cannot be abolished by act of Congress (as has been the case with Circuit and District Courts), but even that high court is dependent upon Congress for the exercise of its jurisdiction, which as prescribed by U. S. Cons., Art. III, sec. 2, cl. 2, is “with such exceptions, and under such regulations, as the Congress shall make.” The Federal courts therefore have no inherent jurisdiction, and their limited jurisdiction extends only to the cases, and can be exercised only in the instances, marked out by the statute.