Lowe v. Jacobs

• Decision Date: 22 April 1957
• Docket Number: No. 16468.,16468.
• Citation: Lowe v. Jacobs, 243 F.2d 432 (5th Cir. 1957)
• Parties: Octavia LOWE et al., Appellants, v. Samuel Garfield JACOBS, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

243 F.2d 432 (1957)

Octavia LOWE et al., Appellants, v. Samuel Garfield JACOBS, Appellee.

No. 16468.

United States Court of Appeals Fifth Circuit.

April 22, 1957.

Richard E. McDaniel, Center, Tex., for appellants.

Howell Cobb, Beaumont, Tex., W. B. Patterson, Dallas, Tex., Robertson, Jackson, Payne, Lancaster & Walker, Dallas, Tex., Orgain, Bell & Tucker, Beaumont, Tex., of counsel, for appellee.

Before HUTCHESON, Chief Judge, and BORAH and TUTTLE, Circuit Judges.

PER CURIAM.

This is an appeal from a preliminary injunction granted by the trial court restraining appellants and their attorney from proceeding further in a damage suit filed in a Texas state court after the defendant below had timely and properly¹ removed the suit to the United States District Court. The appellants claim that the suit based on diversity was not removable under the joinder-of-action provisions of 28 U.S.C.A. § 1441(c) and that therefore the state court had the right to proceed as if no removal had been accomplished. Appellee answers that this statute as amended in 1949 expressly deprives the state court of jurisdiction to proceed with any phase of litigation that has been properly removed unless and until the case is remanded, and that such remand is solely within the power of the United States court. We have no doubt that this is the effect of the law as it now stands. Prior to the amendment of 1949 this removal, to be effective, must be with respect to a case in which a party was "entitled to remove."² The language now employed is "A defendant * * * desiring to remove * * *."

We find no federal decision on this point, but do find several state court cases in which it has been held that the state court now loses all jurisdiction after compliance with the removal statute, until there has been a remand. Hopson v. North American Ins. Co., 71 Idaho, 461, 233 P.2d 799, 25 A.L.R.2d 1040; Bean v. Clark, Miss., 85 So.2d 588; State ex rel. Gremillion v. N.A.A.C.P., La.App., 90 So.2d 884, and see Allen v. Hatchett, 91 Ga.App. 571, 86 S.E.2d 662. No case to the contrary has been called to our attention and we find none.

We thus do not come to the question whether the two suits brought in the state court were or were not separate and independent. That is a matter that can be passed on in the district court on motion to remand. In the present state of the record the trial court had authority to enjoin further proceedings in the state court.

The judgment is Affirmed.

1 In stating that the suit had been "properly" removed we do not pass on the question whether it was a removable suit, but hold merely that the requirements of the statute relating to removal were complied with. These requirements are stated in 28 U.S.C.A. § 1446 as follows:

"(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a verified petition containing a short and plain...