Brodhead v. Shoemaker

11 S.E. 845, 85 Ga. 728, 1890 Ga. LEXIS 141

• Court: Supreme Court of Georgia
• Decided: July 12, 1890
• Status: Published

Opinion

Simmons, Justice.

It is a doubtful question whether the circuit court of the United States has jurisdiction to remove from a State court a case involving alone the probate of a will; but inasmuch as the case has already been removed, upon a proper petition and affidavit, by. order of the circuit court of the United States ; and that court by said order of removal having assumed jurisdiction of the case; and inasmuch as the plaintiff in error here will have an opportunity under the law to make a motion to remand the case upon the ground of want of jurisdiction in the United States court; and as the latter court has power aud authority under the laws of congress to make a final determination as to its jurisdiction as between that court and the State courts, we will not undertake to decide the question of jurisdiction for that court. If the matter rested upon comity alone, we should feel disposed to leave the judge of that court to decide the question for himself. But there is more than comity, for the case having already been removed by his order, no decision that we could make would be binding upon him, and his decision will bind us. If the want of jurisdiction were clear, or if the order of removal were a plain usurpation, we would feel constrained to decide the question for ourselves.

Judgment affirmed.