Opinion of the Court.

state court which ends with the petition for removal, for the Circuit Court can no more take a case until its jurisdiction is shown by the record, than the state court can be required to let it go until the record shows that its jurisdiction has been lost. The questions in the two courts will be identical, and will depend on the same record, namely, that in the state court ending with the petition for removal. The record remaining in the state court will be the original; that in the Circuit Court an exact copy.

But, inasmuch as the petitioning party has the right to enter the suit in the Circuit Court, notwithstanding the state court declines to stop proceedings, it is easy to see that if both courts can try the issues of fact which may be made on the petition for removal, the records from the two courts brought here for review will not necessarily always be the same. The testimony produced before one court may be entirely different from that in the other, and the decisions of both courts may be right upon the facts as presented to them respectively. Such a state of things should be avoided if possible, and this can only be done by making one court the exclusive judge of the facts. Upon that question there ought not to be a divided jurisdiction. It must rest with one court alone, and that, in our opinion, is more properly the Circuit Court. The case can be docketed in that court on the first day of the next term, and the issue tried at once. If decided against the removal, the question is now, by the act of March 3, 1887, c. 373, 24 Stat. 552, put at rest, and the jurisdiction of the state court established in the appropriate way. Under the act of March 3, 1875, c. 137, 18 Stat. 470, such an order could have been brought here for review by appeal or writ of error, and to expedite such hearings our Rule 32 was adopted.

Upon this record as it now stands the state court was wrong in proceeding with the suit, and for that reason

The judgment of the Supreme Court is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Opinion of the Court.

MORRISON v. DURR.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.

Argued April 27, 28, 1887.- Decided May 27, 1887.

In this case the bill having called for answers under oath, and such answers having been made denying each and every allegation of fraud, and the evidence of two witnesses, or of one witness corroborated by circumstances, being wanting in support of the charges of fraud, this court will not reverse the decree dismissing the bill.

IN equity. Decree dismissing the bill. Plaintiff appealed. Mr. Eppa Hunton for appellants.

Mr. Edward J. Pringle for appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the

court.

This is a suit in equity brought by several judgment creditors of the mercantile firm of Kennedy & Durr, to set aside a sale of the goods of the firm of Charles McDermot, under executions on judgments in his favor, on the ground of fraud, and to have the property and its proceeds in the hands of Mc Dermot subjected to the payment of the amounts due them respectively. The bill called for answers under oath, and Mc Dermot answered accordingly, denying each and all of the allegations of fraud which were made against him. This being responsive to the bill, his denials must be overcome by the satisfactory evidence of two witnesses, or of one witness corroborated by circumstances which are equivalent in weight to another, before the complainants can be granted the relief they ask. No such proof has been made. We have looked carefully through the whole evidence, and, while it is full of circumstances calculated to excite suspicion, there is not enough to justify us in reversing the decree of the court below dismiss

Argument for Appellant.

ing the bill. The questions involved are principally of fact, which it would serve no useful purpose to consider at length in an opinion.

The decree is affirmed.

TEXAS TRANSPORTATION CO. v. SEELIGSON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TEXAS.

Submitted April 25, 1887. Decided May 27, 1887.

If a cause pending in a state court against several defendants is removed thence to the Circuit Court of the United States on the petition of one of the defendants under the act of 1875, 18 Stat. 470, on the grounds of a separate cause of action against the petitioning defendant, in which the controversy was wholly between citizens of different states, it should be remanded to the state court if the action is discontinued in the Circuit Court as to the petitioning defendant.

THIS was an appeal from an order remanding a cause to the state court from whence it had been removed. The case is stated in the opinion of the court.

Mr. T. N. Waul for appellants.

I. The case was properly removed from the state court, there being a separable controversy between the plaintiff, a citizen of Texas, on one side, and Huntington, a citizen of New York, on the other side, to which the other defendants were not necessary parties - the only allegation against C. P. Huntington being that he is the owner of the note for $335,000 and the trust deed to secure the same-and the prayer on the original petition to annul and cancel the note and trust deed.

II. There is a controversy between the defendant, C. P. Huntington, a citizen of New York, on one side, and the plaintiff and the other defendants on the other side, in which the interest of the plaintiff and the Texas Transportation Com

Opinion of the Court.

pany and its officers is to annul and declare void or bar by the statute of limitations, the recovery of the debt as evidenced by the note for $335,000 and secured by the trust deed, and it is the interest of the defendant, Huntington, to have the said debt established and secured, of which claim he is charged to be the sole owner. Harter v. Kernochan, 103 U. S. 562, 566; Barney v. Latham, 103 U. S. 205; Pacific Railroad v. Ketchum, 101 U. S. 289; Removal Cases, 100 U. S. 457.

III. That the Circuit Court had jurisdiction at the time' it was removed is evident upon an examination of the petition. filed in the state court by plaintiff and the petition for removal by Huntington. The question of jurisdiction was considered adjudged and determined by the circuit judge on the motion overruling the two motions to remand.

And being established, no act of the complainant thereafter, either by dismissing one of the parties defendant, or either of the causes of action, would authorize the court to remand, although the court should dismiss the case at the cost of complainants. Phelps v. Oaks, 117 U. S. 236; Clarke v. Matthewson, 12 Pet. 164; Roberts v. Nelson, 8 Blatchford, 74; Carrington v. Florida Railroad, 9 Blatchford, 467.

IV. The statute of 1875, § 5, gives authority to the Circuit Court to remand to the state court only in two classes of cases, neither of which arises in this case.

V. When a cause is ordered by the Circuit Court to be remanded, the jurisdiction of the state court re-attaches as though no order of removal had been made. Thatcher v. MeWilliams, 47 Geo. 306; Ex parte Insurance Co., 50 Ala. 464.

Mr. W. E. Earle and Mr. W. W. Boyce for appellee.

MR. CHIEF JUSTICE WAITE delivered the opinion of the court.

This is an appeal under § 5 of the act of March 3, 1875, c. 137, 18 Stat. 470, from an order of the Circuit Court remanding a suit which had been removed from a state court. The suit was begun December 18, 1883, in the Circuit Court of Harris County, Texas, by Henry Seeligson, a citizen of that

Opinion of the Court.

state, and the owner of twenty shares of the capital stock of the Texas Transportation Company, a Texas corporation, against that company, and A. C. Hutchinson, Charles Fowler, E. W. Cave, and L. Megget, its directors and principal officers, for an account of the affairs of the company; and to annul and set aside a note of the company for $335,000 to Charles Morgan, together with a deed of trust given for its security. Hutchinson is a citizen of Louisiana, but all the rest of the defendants are citizens of Texas. On the 9th of February, 1884, a supplemental petition was filed in the suit alleging that C. P. Huntington had become the owner of the note given to Morgan, and bringing him in as a defendant. Citation was served on him March 13, 1884, and, on the 31st of the same month, he, being a citizen of New York, presented his petition for the removal of the suit to the Circuit Court of the United States for the Eastern District of Texas, on the ground "that there is a controversy in said suit which is wholly between citizens of different states, and which can be fully determined as between them, to wit, a controversy between said Seeligson, plaintiff, and your petitioner, and a controversy between your petitioner, on one side, and in which the interests of the said Seeligson, the Texas Transportation Company, and the other defendants, officers of said company, are on the other side." Upon this petition an order of removal was made, and the suit entered in the Circuit Court on the 16th of October, 1884, when the defendants appeared, and, on the 1st of December, filed a joint and several demurrer to the bill. On the 5th of January, 1885, this demurrer was sustained as to Huntington, but overruled as to the rest of the defendants. The bill was then amended, and afterwards, on the 9th of March, it was ordered that the "complainant do recast and amend his bill so as to conform to the equity rules of the Supreme Court, and that, in so amending and recasting his pleadings, he have leave to bring in two or more bills, as counsel may advise, so as to save to complainant all the causes of action contained in his original bill," and that, "if this order is not complied with by the rule day in May next, the complainant's bill shall stand dismissed with costs." On the 2d of May, Seeligson