a cause pending in the circuit court of Wetzel County, West Virginia, being an action of trespass on the case in which the said John Henen, administrator of Jane Smith, deceased, is plaintiff and the said Baltimore and Ohio R. R. Co. is defendant, the said defendant has filed its petition praying that the said cause may be removed into the next circuit court of the United States to be tried and determined, which prayer has been granted on terms of giving this bond: Now, if the said Baltimore and Ohio R. R. Co. shall file and enter in said circuit court of the United States for the district of West Virginia copies of said process in said cause on the first day of the next session of said Court, and shall then and there appear and do what may be by law required to be done in the premises, then this obligation to be void, else to remain in full force and virtue.

To the said order of the circuit made in this case on the said 18th of October, 1879, a writ of error was allowed the plaintiff on the 22d day of November, 1879, upon his petition and assignment of error by this court without bond and security being required; and in this way the said order is before this court for review and decision.

Ewing and Riley, for plaintiff in error, cited the following authorities:

15 W. Va. 362; 12 Gratt. 655; 1 W. Va. 308; 3 W. Va. 319; 15 W. Va. 609; 13 Wall. 270; 12 Wall. 65; Rev. Stat. U. S. 8721; 2 Black 599; Id. 532; 24 How. 264; Id. 364; 7 How. 767; Id. 812; 5 How. 64; Id. 139; 11 How. 297; 14 How. 488; 22 How. 1; 14 Pet. 56; 5 Cranch, 22; 9 Cranch, 87; 1 Wheat. 279; 2 Wheat. 316; 12 Wheat. 153; 1 Pet. 604; 6 Pet. 291; 9 Cent. Law Jour. No. 24, p. 467; 29 Gratt. 431; Acts 1872-3, ch. 17; Acts 1877, ch. 44; 2 Munf. 336; 3 Munf. 458; 4 Munf. 383; 6 Rand. 349; 8 Leigh, 88; 1 Am. 166; 8 Am. 583; 13 Am. 285. C. Boggess, for defendant in error, cited the following authorities:

15 W. Va. 479; 10 Gratt. 1; 8 W. Va. 63; 8 Blatchf. 153; Dillon Rem. Caus. 75; 22 Wall. 250; 5 Blatchf. 336; 13 Pet. 512; 2 How. 497; 16 How. 314; 20 Wall. 453; 8 Blatchf. 243; 22 Wall. 454; 19 Wall. 214; 6 Otto, 199; 16 How. 329; 2 Wall. 445; 4 Otto, 535; 12 Gratt. 655; 3 W. Va. 319; 1 W. Va. 308; 15 W. Va. 609; Ram Leg. Judgt. ch. 5.

HAYMOND, JUDGE, announced the opinion of the court:

In considering this case I deem it proper to first consider, whether the order of the circuit court made in this case on the 18th day of October, 1879, is such an order made in the case as

that the same may properly be reviewed by writ of error by this court under the law. As it seems to me, we are not without very respectable authority bearing on this question. In the case of Akerly v. Vilas, 24 Wis. 165 and 1st American Reports, 166, decided at February term, 1869, it was held, that "an order of a state court, transferring a cause to the Federal court under the act of Congress of March 2, 1867, is an appealable order and the state courts have jurisdiction to hear and determine the appeal."

Judge Paine who delivered the opinion of the court in that case, at pages 167, 168, 167, 170 and 171, says: "If there was no law authorizing the removal-and there was none, if either of the positions taken by the appellant is true then the jurisdiction of the state court remained unimpaired, and there was no obstacle in the way of its exercise, except the erroneous order that the case be removed. And the idea, that the appellate power of the state court cannot be invoked to correct this error; that it remains in abey ance, suspended by such an unauthorized application, that the court which has jurisdiction must decline to exercise it, until the court which has none shall see fit to disclaim it, is one that cannot be supported upon any reasoning.

"But if the right of appeal exists in a case where the removal is unauthorized, then it must also exist even when the order of removal is proper. The question whether the court has power to hear and determine the appeal cannot depend upon the conclusion to which it may come on the merits of the order to be reviewed.

"Nothing is better settled in legal practice than that an order by which a subordinate court dismisses a case for want of jurisdiction, or in any way divests itself of jurisdiction, is subject to review on appeal. It is within the expression of our statute that allows an appeal from any order which prevents a judgment from which an appeal might be taken. It is the common law practice of all courts. The case of The Mayor v. Cooper, 6 Wall. 247, cited by the respondent, is one where the Supreme Court of the United States reviewed such an order made by the United States circuit court. It is true, in that case the order or judgment of dismissal was reversed, the court holding that the circuit court had jurisdiction. But if they had held differently they would have affirmed the order, and not have dismissed the writ of error. This is the invariable practice; and this shows that the exercise of the power to hear and determine an appeal from an order by which a subordinate court attempts to divest itself of jurisdiction, is not an assertion of jurisdiction in the case subsequent to and in defiance of the application for removal. It is merely a decision upon that application itself. And that decision, whether the power be exercised by a subordinate or an Appellate Court, is not the exercise of jurisdiction in the case. It is the determination of an independent preliminary question, and one which every court, from the neces

sity of the case, has the power to determine whenever presented; and whoever invokes the exercise of this power on the part of a subordinate tribunal of the State must invoke it subject to all the conditions imposed upon that tribunal by the law of its existence; and one of those conditions is, that an order made upon such an application is appealable.

"That the power to hear and determine an appeal from such an order is entirely independent of the question of jurisdiction to proceed upon the merits of the action, the case of Nelson v. Leland et al., 22 How. (U. S.) 48, is an express authority. A motion was there made to dismiss the appeal on the ground of a want of jurisdiction originally in the subordinate courts. And the chief justice delivered the opinion of the court, 'that the question of jurisdiction in the lower court is a proper one for appeal to this court, and for argument when the case is regularly reached, and that this court has jurisdiction on such appeal.' The motion was therefore denied, and upon the express ground that their jurisdiction of the appeal was wholly independent of the actual jurisdiction of the lower court to try the action upon its merits. And if this is so, the exercise of this appellate power is not the exercise of that jurisdiction of which it is claimed that the State court is divested by the presentation of a proper application for removal. It is true, that if the Appellate Court should sustain the jurisdiction of the State tribunals, they might proceed subsequently to attempt to exercise it. But the mere determination of the question whether such jurisdiction has ceased or continued, is not an exercise of it, any more when made by the Appellate Court than it was when made by the subordinate court.

"Indeed the right and the duty of the State courts to exercise such appellate power, has been expressly decided by the Supreme Court of the United States, in Kanouse v. Martin, 15 How. 198. The Court of Common Pleas in the city of New York had denied an application for removal, and afterward proceeded to try the action on the merits, and rendered judgment. It was taken by appeal to the Superior Court, which affirmed the judgment. And the Supreme Court of the United States reversed the judgment on the ground that the Superior Court erred, not in taking jurisdic tion of the appeal, but in neglecting to reverse the judgment of the Common Pleas for refusing the application for removal. They say: 'The error of the Superior Court was therefore an error occurring in the exercise of its jurisdiction, by not giving due effect to the act of Congress under which the plaintiff in error claimed,' etc. And it made an order remanding the case to the Superior Court, with directions for further proceedings in conformity to the opinion. And such further proceedings would consist wholly of an exercise of the appellate power of the Superior Court to reverse the judgment of the Common Pleas.

"And yet we are referred to this case, by the respondent's counsel, to support their assertion that this court will stultify itself by taking jurisdiction of this appeal.

"This court certainly is not oblivious of the fact, that, if it should hold that a removal of this suit was unauthorized, and should subsequently proceed to render final judgment, after such further trial as may be necessary, the Supreme Court of the United States may assert its appellate jurisdiction over that judgment, may reverse it, and remand the case with directions similar to those in Kanouse v. Martin, as counsel suggested. But we feel very confident that if it should do so, it will not be because this court erred in assuming jurisdiction of the appeal, but because it will think this court erred in holding the plaintiff not entitled to a removal.

"I have thus endeavored to state the distinction between the exercise of the power to decide upon the application for a removal, whether by the subordinate or appellate court, and the exercise of jurisdiction over the merits of the action, for the purpose of showing that the broad language used by the court in Gordon v. Longest, 16 Pet. 104, cannot, in any event, be applicable to the exercise of such appellate power. But it is, perhaps, doubtful whether the same language would now be used by that court. The subsequent case of Kanouse v. Martin seems studiously to avoid it, and makes no suggestion that the judgments of the Court of Common Pleas and of the Superior Court were void for want of jurisdiction, but speaks of them, throughout the opinion, as merely erroneous, and the same view is also supported by the case of Hadley v. Dunlap, 10 Ohio St. 1. I come therefore to the conclusion, that this order is appealable, and that it is the duty of this court, from which it cannot shrink, to proceed to a determination of the questions presented."

The act of March 2, 1867, will be found in the acts of Congress of 1866-7, pp. 558 and 559.

The principle involved in the above-named case and discussed by Judge Paine in delivering the opinion of the court is the same now under consideration in this case. See case of Taylor Strauder v. The State of West Virginia, 9 Otto, in connection with Kanouse v. Martin, supra.

In the case of State ex rel. Coens v. The Judge of the Thirteenth Judicial District, 23 La. An. 29, 8 Am. Rep. 583, it was held, that "The application of a party to remove a cause to the Circuit Court of the United States is analogous to a plea to the jurisdiction of the State court, and when granted, the party against whom it is granted has a right to appeal. The case would be different if the application to remove is refused. In the latter case no irreparable injury would follow, and the appeal would not be allowed (see note 7, Am. Rep. 507)." In the said case in 23 La. An. 29 supra, Judge Howe in delivering the opinion of the court, at page

584, 8 Am. Rep. says: "We had occasion to say, in the case of Rosenfield v. The Adams Express Company, 21 An. 233, that an application to remove is analogous to a plea to the jurisdiction, and that if granted, an appeal would lie. The remark was, perhaps, not entirely necessary to the decision of that case, but we do not find any reason, on the most careful examination, to doubt its correctness. In Beebe v. Armstrong, 11 Mart. 440, this court entertained such an appeal, and reversed the order of removal. In Duncan v. Hampton, 12 Mart. 92, a similar appeal was entertained, and the question of the right of appeal seems to have been discussed; for alluding to a difference of opinion on the merits, Judge Matthews said: 'As we are unanimously of opinion that the judg ment (of removal) rendered by the district court is a decision from which an appeal ought to be sustained, it is unnecessary to investigate that part of the cause.' Judge Martin was in favor on the merits of reversing the order of removal. There are three cases where similar appeals were entertained: Louisiana State Bank v. Morgan, 4 N. S. 344; Fritz v. Hayden, Id. 653, and Fisk v. Fisk, Id. 676. In the first of these the order of removal was reversed. In Higgins v. McMicken, 6 N. S. 712, the court declared, that it had several times entertained jurisdiction of 'such appeals, and added, such decisions or judgments were properly considered as final in consequence of sustaining the petitions for removal. A request to change the jurisdiction of a suit from a State court to one of the United States, under the law of Congress is analogous to a plea to the jurisdiction of the court in which the proceedings commenced; and when a removal is ordered, the plaintiff would be without remedy against such order, unless by appeal.' In Stoker v. Leavenworth, 7 La. 390, a similar appeal was entertained, and the judgment' of removal affirmed; and the same action was had in Franciscus v. Surget, 6 Rob. 33. We cannot undertake to disturb this well-settled jurisprudence."

See as bearing upon the subject the opinion of the court in Beery v. Irack, 22 Gratt. 484, 12 Am. Rep. 539.

In the case of Burson v. The National Park Bank of New York, 40 Ind. 173, 13 Am. Rep. 285, it was held, that "In an action. commenced by a citizen of another State against a citizen of Indiana, the court on application and after a trial in which the jury disagreed, ordered the cause to be removed into the circuit court of the United States under the acts of Congress. Held (1), That the order was appealable; (2) that the cause could be removed at any time before another trial; and that the acts of Congress allowing a plaintiff to remove a cause into the Federal courts were constitutional."

In this case Judge Deveney in delivering the opinion of the court, at page 286 American Rep. says: "When, as in this case, an order has been made by one of such courts transferring a cause to