GAINES, Chief Justice.
This suit was brought by the defendant ' in error' against the plaintiff in error to recover damages for an alleged failure to promptly carry and carefully transport certain cattle. It has been tried twice. Upon the first trial, there was a judgment in favor, of the defendant in the trial court, which judgment was reversed by this court. 91 Texas, 505. Upon the second trial, the plaintiff recovered and the judgment in his favor has been affirmed by the Court of Civil Appeals. To reverse that judgment, the defendant in the trial court has applied for and obtained this writ of error.
On the 6th day of January, 1896, which was the first day of the next term of the District Court after the suit was brought, the defendant filed its petition and bond for a removal of the cause to the Circuit Court of the United States. On the next day, the plaintiff excepted to the petition for removal, and the court, after approving the bond, in effect sustained the exception and entered an order refusing to remove the cause, to which the defendant excepted. The only legal effect of this action was to announce the opinion of the court, that the petition and bond were not sufficient and to apprise the defendant that the cause would be proceeded with in the State court. Thereupon the defendant answered, urging, among other things, both by demurrer and plea, the removal of the cause to the United States court and the consequent want of jurisdiction in the State court. But its objection was formalty overruled, to which action of the court exception was taken and duly entered of record.
The action of the court in holding that the cause was not removed and in proceeding with the case to a final determination over the objection of the defendant was assigned as error in the Court of Civil Appeals and is also assigned in this court.
The petition for removal of the cause was sufficient (Texas & Pacific Railway Co. v. Cody, 166 U. S., 606); and there is no merit in the contention of defendant in error that the bond was not filed. The transcript shows that the petition and bond were filed together; and, further, that when the trial judge sustained exceptions to the petition, he had the bond before him and held it good.
But it is urgently insisted that the defendant, by its action in the State court, has waived its right of removal. The rule now well established is that the seasonable filing of a sufficient petition for removal, accompanied by a sufficient bond, tolls the jurisdiction of the State court and transfers it eo instanti to the United States court.' It would seem, however, that since the right of removal is a mere jurisdictional privilege, it might be waived even after it has been exercised, and the jurisdiction of the State court restored. An express waiver would accomplish this result; and it may be, also, that conduct on part of the defendant inconsistent with the idea that he intends tó insist upon the
removal of the cause — especially when such conduct is prejudicial to the rights of the plaintiff — should be deemed a waiver. But that the defendant does not lose his right by defending the action with all the means in his power, in case the State court proceeds with the cause, is now the settled law. In the case of the national Steamship Company v. Tugman, 106 U. S., 118, the Supreme Court of the United States say: ,
“The only remaining question which need be considered is, whether the jurisdiction of the State court was, in any form, restored after the company filed its petition and bond for removal. The defendant in error insists that it was. The petition was accompanied by a bond, which, it is conceded, conformed to the statute, and was ample as to security. Upon the filing, therefore, of the petition and bond — the suit being removable under the statute — the jurisdiction of the State court absolutely ceased, and that of the Circuit Court of the United States immediately attached. The duty of the State court was to proceed no further in the cause. Every order thereafter made in that court was coram non judice, unless its jurisdiction was actually restored. It could not be restored by the mere failure of the company to file a transcript of the record in the Circuit Court of the United States within the time prescribed by the statute. The jurisdiction of the latter court attached, in advance of the filing of the transcript, from the moment it became the duty of the State court to accept the bond and proceed no further; and whether the Circuit Court of the United States should retain jurisdiction, or dismiss or remand the action because of the failure to file the necessary transcript, was for it, not the State court, to determine.
“Bor was the jurisdiction of the State court restored when the company, subsequently, consented .to the order requiring the issues to be Beard and determined by a referee selected by the parties, or when it appeared and contested the case, as well before the referee as in the .State courts, up to final judgment. The right of the company to have a trial in the Circuit Court of the United States became fixed upon the filing of the petition and bond. But the inferior State court having ruled that the right of removal did not exist and that it had jurisdiction to proceed, the company was not bound to desert the case and leave the opposite party to take judgment by default. It was at liberty, its right to .removal being ignored by the State court, to make defense in that tribunal in every mode recognized by the laws of the State, without forfeiting or impairing, in the slightest degree, its right to a trial in the court to which the action had been transferred, or without affecting, to any extent, the authority of the latter court to proceed. The consent by the company to a trial by referee was nothing more than an expression of its preference (being compelled to make defense -in the State court) for that one of the several modes of trial permitted by the laws of the State. It is true that when the cause was taken up by the referee, as well as when heard in the Supreme Court of the State and
in the Court of Appeals, the company protested that the Circuit Court of the United States alone had jurisdiction after the petition and bond for removal were filed. But no such protests were necessary, and they added nothing whatever to the legal strength of its position. When the State court adjudged that it had authority to proceed, the company was entitled to regard the decision as final, so far as that tribunal was concerned, and was not bound, in order to maintain the right of removal, to protest, at subsequent stages of the trial, against its exercise of jurisdiction. Indeed, such a course would scarcely have been respectful to the State court after its ruling upon the point of jurisdiction had been made.
“What we have said upon this subject is fully sustained by our former decisions, particularly Railway v. Koontz, 104 U. S., 5; Railway v. Mississippi, 302 U. S., 135; Kern v. Huidekoper, 103 U. S., 485; and Insurance Co. v. Dunn, 19 Wall., 214.”
The language quoted clearly shows that by filing the petition and bond, the jurisdiction of the State court is gone, and aptly speaks of its jurisdiction as being “restored.” It may be seen how an express agreement or an express waiver, which is practically the same thing, may restore the lost jurisdiction; but it is not evident that any other act done in the State court, after it has lost all power over the case, should have that effect.
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GAINES, Chief Justice.
This suit was brought by the defendant ' in error' against the plaintiff in error to recover damages for an alleged failure to promptly carry and carefully transport certain cattle. It has been tried twice. Upon the first trial, there was a judgment in favor, of the defendant in the trial court, which judgment was reversed by this court. 91 Texas, 505. Upon the second trial, the plaintiff recovered and the judgment in his favor has been affirmed by the Court of Civil Appeals. To reverse that judgment, the defendant in the trial court has applied for and obtained this writ of error.
On the 6th day of January, 1896, which was the first day of the next term of the District Court after the suit was brought, the defendant filed its petition and bond for a removal of the cause to the Circuit Court of the United States. On the next day, the plaintiff excepted to the petition for removal, and the court, after approving the bond, in effect sustained the exception and entered an order refusing to remove the cause, to which the defendant excepted. The only legal effect of this action was to announce the opinion of the court, that the petition and bond were not sufficient and to apprise the defendant that the cause would be proceeded with in the State court. Thereupon the defendant answered, urging, among other things, both by demurrer and plea, the removal of the cause to the United States court and the consequent want of jurisdiction in the State court. But its objection was formalty overruled, to which action of the court exception was taken and duly entered of record.
The action of the court in holding that the cause was not removed and in proceeding with the case to a final determination over the objection of the defendant was assigned as error in the Court of Civil Appeals and is also assigned in this court.
The petition for removal of the cause was sufficient (Texas & Pacific Railway Co. v. Cody, 166 U. S., 606); and there is no merit in the contention of defendant in error that the bond was not filed. The transcript shows that the petition and bond were filed together; and, further, that when the trial judge sustained exceptions to the petition, he had the bond before him and held it good.
But it is urgently insisted that the defendant, by its action in the State court, has waived its right of removal. The rule now well established is that the seasonable filing of a sufficient petition for removal, accompanied by a sufficient bond, tolls the jurisdiction of the State court and transfers it eo instanti to the United States court.' It would seem, however, that since the right of removal is a mere jurisdictional privilege, it might be waived even after it has been exercised, and the jurisdiction of the State court restored. An express waiver would accomplish this result; and it may be, also, that conduct on part of the defendant inconsistent with the idea that he intends tó insist upon the
removal of the cause — especially when such conduct is prejudicial to the rights of the plaintiff — should be deemed a waiver. But that the defendant does not lose his right by defending the action with all the means in his power, in case the State court proceeds with the cause, is now the settled law. In the case of the national Steamship Company v. Tugman, 106 U. S., 118, the Supreme Court of the United States say: ,
“The only remaining question which need be considered is, whether the jurisdiction of the State court was, in any form, restored after the company filed its petition and bond for removal. The defendant in error insists that it was. The petition was accompanied by a bond, which, it is conceded, conformed to the statute, and was ample as to security. Upon the filing, therefore, of the petition and bond — the suit being removable under the statute — the jurisdiction of the State court absolutely ceased, and that of the Circuit Court of the United States immediately attached. The duty of the State court was to proceed no further in the cause. Every order thereafter made in that court was coram non judice, unless its jurisdiction was actually restored. It could not be restored by the mere failure of the company to file a transcript of the record in the Circuit Court of the United States within the time prescribed by the statute. The jurisdiction of the latter court attached, in advance of the filing of the transcript, from the moment it became the duty of the State court to accept the bond and proceed no further; and whether the Circuit Court of the United States should retain jurisdiction, or dismiss or remand the action because of the failure to file the necessary transcript, was for it, not the State court, to determine.
“Bor was the jurisdiction of the State court restored when the company, subsequently, consented .to the order requiring the issues to be Beard and determined by a referee selected by the parties, or when it appeared and contested the case, as well before the referee as in the .State courts, up to final judgment. The right of the company to have a trial in the Circuit Court of the United States became fixed upon the filing of the petition and bond. But the inferior State court having ruled that the right of removal did not exist and that it had jurisdiction to proceed, the company was not bound to desert the case and leave the opposite party to take judgment by default. It was at liberty, its right to .removal being ignored by the State court, to make defense in that tribunal in every mode recognized by the laws of the State, without forfeiting or impairing, in the slightest degree, its right to a trial in the court to which the action had been transferred, or without affecting, to any extent, the authority of the latter court to proceed. The consent by the company to a trial by referee was nothing more than an expression of its preference (being compelled to make defense -in the State court) for that one of the several modes of trial permitted by the laws of the State. It is true that when the cause was taken up by the referee, as well as when heard in the Supreme Court of the State and
in the Court of Appeals, the company protested that the Circuit Court of the United States alone had jurisdiction after the petition and bond for removal were filed. But no such protests were necessary, and they added nothing whatever to the legal strength of its position. When the State court adjudged that it had authority to proceed, the company was entitled to regard the decision as final, so far as that tribunal was concerned, and was not bound, in order to maintain the right of removal, to protest, at subsequent stages of the trial, against its exercise of jurisdiction. Indeed, such a course would scarcely have been respectful to the State court after its ruling upon the point of jurisdiction had been made.
“What we have said upon this subject is fully sustained by our former decisions, particularly Railway v. Koontz, 104 U. S., 5; Railway v. Mississippi, 302 U. S., 135; Kern v. Huidekoper, 103 U. S., 485; and Insurance Co. v. Dunn, 19 Wall., 214.”
The language quoted clearly shows that by filing the petition and bond, the jurisdiction of the State court is gone, and aptly speaks of its jurisdiction as being “restored.” It may be seen how an express agreement or an express waiver, which is practically the same thing, may restore the lost jurisdiction; but it is not evident that any other act done in the State court, after it has lost all power over the case, should have that effect. It would seem, as intimated in the language just quoted, that, as a general rule, when the jurisdiction is once lost, it takes the order of the United States court to restore it. At all the events, we think the case of the Steamship Company v. Tugman, supra, is conclusive of all questions of waiver which are raised by the record before us.
But it is urged that the defendant waived its right of insisting upon removal of the cause by not raising the question upon the former appeal in this ease. If, by reason of any act or omission of the defendant in course of an appeal, the jurisdiction of the State court has been restored, the record in this case does not show it. There appears in the transcript neither a former judgment, a notice of appeal, an appeal bond, nor a mandate. Consequently, we must treat the case as if no former appeal had been taken. If the defendant desired to avail himself of the point, he should have caused the transcript to show that a former appeal had been perfected.
But if, as has been decided, the defendant does not restore the jurisdiction of the court after the case has been removed by making his defense in the trial court, we do not clearly see how, as is contended, such result would follow from an appeal from the judgment merely because the action of the court in proceeding with the trial of the cause was not assigned as error in the appellate court. But if, in deciding this question, we were at liberty to look at the records of this court upon the former appeal, we should find that upon the first trial the judgment was in the defendant’s favor. - The plaintiff then appealed. The rights of the parties, with reference to the vacating of that judgment, were
different. The plaintiff had forced a trial over the objection of the defendant that the court was without jurisdiction, and it did not lie in his mouth to say that the judgment was coram non judice and therefore void. In the absence of some other error, he was bound by it and it was the defendant’s right to hold him to it. Very clearly we think the defendant had the right to insist upon the affirmance of the judgment in his favor and that by doing so he did not waive his right to object to the jurisdiction of the District Court, in case of a reversal and a remand for a new trial.
The defendant in error has filed in the Court of Civil Appeals what is styled a supplemental transcript, showing a motion by himself to vacate the judgment appealed from, filed after the judgment was rendered; a transcript from the proceedings of the United States Circuit Court, showing that subsequent to that motion' he had filed the record in the latter court and had caused the case to be remanded to the State court; and a subsequent paper filed by him in the State court, withdrawing his motion to vacate the judgment. The order remanding the cause was made on the 18th day of April, 1899, which was more than two months after the rendition of the judgment.
We do not see why the remanding order does not show a restoration of the jurisdiction of the State court on the day of its date; but that it did not have the effect of giving life to a judgment that was rendered in the court at the time it had no jurisdiction and make that valid which was void, is a proposition we think too plain for argument.
Having examined the other assignments, we are of opinion that they show no error. The questions raised by them are correctly determined by the Court of Civil Appeals. It has been not without difficulty that we have reached that conclusion as to the right of the plaintiff, Davis, to prosecute the suit for the damages which accrued to the Corralitos Company. We do not doubt that the shipment of the cattle was an' interstate shipment and that therefore the contract was a lawful one, although the corporation may have been doing business in the State contrary to its laws. The language of article 746 of the Bevised Statutes is very broad. It prohibits a foreign corporation which is doing business in the State from bringing suit “on any demand whatever arising out of contract or tort unless, at the time such contract was made or tort committed, the corporation had filed its articles of incorporation,” etc. We do not think it was the purpose of the statute to prohibit in any case suits growing out of contracts of interstate commerce.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.