#### L. B. HUNTLEY v. SOUTHEASTERN EXPRESS COMPANY.

(Filed 5 May, 1926.)

Removal of Causes — Federal Courts — Jurisdiction—State Court — Orders —Pleadings—N onsuit.

Where a suit is properly removable from the State to the Federal Court for diversity of citizenship, the jurisdiction of the State court terminates upon the filing by the nonresident defendant of a proper petition and bond therefor, within the time prescribed, and further orders of the State court allowing amendment to confer jurisdiction on it in respect to the amount involved, or permitting the plaintiff to take a voluntary nonsuit, is without effect.

Appeal by defendant from Stacie, J., at May Term, 1925, of Caldwell.

Civil action to recover damages for an alleged negligent injury, instituted by plaintiff, a citizen and resident of Caldwell County, North Carolina, against the defendant, a corporation chartered under the laws of the State of Georgia.

The defendant, in apt time, filed its petition and bond for removal of the cause to the District Court of the United States for the Western District of North Carolina for trial, on the ground of diverse citizenship. Upon the hearing of said petition before the clerk, the plaintiff *697was allowed to reduce tbe amount of bis claim, as set out in tbe complaint, from $10,000 to $2,999, and tbe petition was thereupon denied.' Tbe defendant excepted and appealed to tbe judge; and on tbe bearing before tbe judge, tbe plaintiff was allowed, over objection of tbe defendant, to submit to a voluntary nonsuit. Erom tbis judgment tbe defendant appeals, assigning error.

No counsel for ‘plaintiff.

Squires & Whisnant for defendant.

Stacy, C. J.

Tbe petition for removal, besides showing tbe presence of tbe requisite jurisdictional amount, asserts a right of removal on tbe ground of diverse citizenship, or that tbe case is one between citizens of different states. U. S. Judicial Code, sec. 28.

Tbe cause being a proper one for removal, and tbe petition and bond having been filed in apt time, it was error for tbe clerk or tbe judge of tbe State Court to enter any order therein, affecting tbe rights of tbe parties, save tbe order of removal. Kern v. Huidekoper, 103 U. S., 485.

When a sufficient cause for removal is made out in tbe State Court, tbe rightful jurisdiction of that court comes to an end, and no further proceedings can properly be bad therein unless and until its jurisdiction has been restored. Baltimore, etc., R. Co. v. Koontz, 104 U. S., 5.

It has been held that after tbe due filing of petition and bond, an amendment to tbe complaint, reducing tbe amount in controversy to a sum less than that required to give tbe Federal Court jurisdiction of tbe suit, will not defeat tbe jurisdiction of tbe Federal Court which has already attached. Stephens v. St. Louis, etc., R. Co., 47 Fed., 530; Lake Erie, etc., R. Co. v. Huffman, 177 Ind., 126, Ann. Cas., 1914 C, 1272. But it has also been held that if tbe motion to amend precedes tbe filing of tbe petition to remove, tbe suit is not removable, even though tbe amendment has not actually been made. Waite v. Phoenix Ins. Co., 62 Fed., 769. In tbe case at bar tbe motion to amend followed tbe petition to remove.

Tbe jurisdiction of tbe Federal Court having attached immediately upon tbe filing of tbe petition and bond, and tbe jurisdiction of tbe State Court by tbe same act having been ousted, it follows that tbe judgment of nonsuit was erroneously entered in tbe State Court. Nat. Steamship Co. v. Tugman, 106 U. S., 118.

Reversed.