competent to sue and all the defendants to | States, it is clear that the motion comes too be sued in said courts.

late when made in the Supreme appellate The expression used in the judiciary act, tribunal of the State. The act provides "or where the suit is between a citizen of that the non-resident party to a suit in a the State where the suit is brought and a State court between a citizen of that State citizen of another State," means, obviously, and a citizen of another State, shall be enthat each distinct interest should be rep-titled to a removal of his cause to the next resented by persons, all of whom are en- Circuit court of the United States to be titled to sue, or may be sued in the Federal | held in the district where the suit is pendcourts. That is, when the interest is joint, ing, on making the proper application "at each of the persons concerned in the inter- any time before the final hearing or trial est must be competent to sue, or be sued in of the suit." those courts. Strawbridge v. Curtiss, 3 Cranch, R. 267; Corporation *of New Orleans v. Winter & als., 1 Wheat. R. 91; 17 How. U. S. R. 468; 2 Paine R. 103. In both of the cases which are now sought to be removed to the Circuit court of the United States, a part of the plaintiffs are citizens of other States, and part are citizens of Virginia. In the case of Beery v. Irick, one of six plaintiffs is a citizen of the State of Indiana, and the remaining five are citizens of Virginia.

488

The question we have to consider, is (admitting for the time that it is a proper case for a removal), was the application made before the "final hearing or trial,' within the meaning and intent of the statute.

The word "final" applies to and qualifies the word hearing, and not the word "trial.” In the act of 1866 the language is "before trial or final hearing." The transposition of the words in the act of 1867 was probably accidental, and not affecting, nor designed The interests of these plaintiffs in both to affect, any change in the meaning. The cases are so blended and tied up together, words "final hearing" are ordinarily apand so connected with the interests of the plied to cases in equity, while the word defendants in the two chancery causes re-trial" is applied to actions at law. The spectively, in which they are all made par- obvious and unmistakable intention of the ties, that it is impossible that their rights statute was to require a party desiring a can be adjudicated without having all the removal to do so before trials in action at parties before the same tribunal. It is ob- law, and before a final hearing in suits in vious, therefore, that in neither case could equity. In the language of the court in the Federal courts take original jurisdiction, Akerly v. Vilas, 1 Abbot's U. S. Dist. Ct. because they are both cases where the juris- R. 293: "The reason and justice of this diction depends altogether on the citizenship construction are apparent. Only the nonof the parties, and a part of the plaintiffs resident can apply for it. And it would are citizens of Virginia and a part citizens constitute the very essence of injustice of other States; and it is manifest their to give him the right to experiment interests cannot be separated. 490 *upon the decisions of the State tribunals, obtaining those which, if in his favor, would be binding and conclusive upon the other party, but which, if against himself, he could repudiate and take his chances again in a new tribunal. The statute did not intend to provide for any such wrong; but, on the contrary, clearly designed to exclude the possibility of it by requiring the application to be made before trial or final hearing." Id. 293, 294.

If, therefore, the motion now made here in the appellate court, had been made in the courts below (Circuit courts of Rockingham and Augusta), and before the final hearing, it ought not to have been entertained, because the cases were not such as could have been originally brought in the Circuit courts of the United States. Hubbard &c. v. Northern R. R. Co., 3 Blatchf. R. 84; S. C. 25 Vermont R. 715; Wilson v. Blodget, 4 McLean's R. 363; Fisk v. Chicago, &c., R. R. Co., 53 Barb. R. (N. Y.) 472.

In the last named case it was distinctly decided, that "unless all the plaintiffs are citizens of the State in whose court the suit is brought, and all the defendants citizens of a State other than that, the case cannot be removed to the United States Court."

But in the cases before us, there was a final decree by the court below, and no motion was submitted for a removal 489 *while pending in that court. But the motion is made here in the Appellate court, for the first time, after a final hearing of the causes in the court below. In the one case there was a decree in favor of the petitioner, in the other, a decree against the parties asking for removal.

If the cases before us were such cases as could be removed at any stage of the proceedings, to the Circuit court of the United

It follows, therefore, that if the application for removal had been made in the court below after the decrees were pronounced, adjudicating the rights of the parties and settling the merits of the controversy, such a motion could not have been entertained under the express terms of the statute. Is the case different because these decrees have been superseded and brought before this court for review on appeal? We think not. There has been a final hearing of the cases in the court below. They are here for review, and the question before this court is, Shall these final decrees be reversed or affirmed? If they can be now removed to the Circuit court of the United States, the same questions will be presented to that court, and the Circuit court of the United States must either review the cases upon the records as they stand upon the docket of this court, and determine whether the decrees shall be reversed or affirmed, or it

Such a course of practice would be to substitute the Circuit court of the United States, as an Appellate court to the Circuit court of the State, in the place of that Supreme appellate court constituted by the constitution and laws of this State as the court of the last resort. Such unprecedented and dangerous jurisdiction in the Federal courts will never be recognized by this court, unless the very letter of the law imperatively requires it, and unless such law, if enacted by Congress, shall be declared by the Supreme court of the United States to be consonant with the constitution of the United States, which expressly limits the jurisdiction of the Federal courts.

must set aside the decrees of the State court to the Federal courts after trial and final and try the cases de novo in the Federal hearing. court. If the theory of the learned counsel for the petitioners be true, the Federal court must take one or the other course. He does not tell us which. We think it can take neither. It never was the object of the statute to provide for a review of the decisions of a State court, but simply for the exercise of an election by a party to a suit in a State court to transfer it to another court of original jurisdiction for trial. The design manifestly was to authorize an election between the two tribunals, not to give him a chance at both. 491 *Any other construction would be to confer upon the Federal courts, whose jurisdiction is carefully limited by the constitution of the United States, an extraordinary and incongruous appellate jurisdiction, by which the judgment or decree of a State court, solemnly pronounced in a case where it had the undoubted jurisdiction, could be, reviewed, reversed and annulled by a Federal court.

Such a construction would permit a party who has deliberately chosen his tribunal, after years of litigation in a State court, where the decision, if in his favor, would bind the other party, if against him, to take another chance in another forum, to repudiate the authority of the tribunal he has chosen, after a final hearing of his cause, by invoking the aid of another State court, the Supreme appellate court, to enable him to get his cause before a Federal court.

In one of the cases before us the non-resident petitioner had failed in the court below upon the final hearing of his cause, and there was a decree against him. It will be conceded by his own counsel that he could not then, without obtaining an appeal, have removed the cause to the Federal court. It was too late by the express terms of the statute. He then invokes the aid of this court, upon the ground that the decree against him was erroneous. An appeal is allowed him by this court, or one of its judges; and thereupon he files his petition and affidavit that he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice" from this court, whose appellate power has been invoked, and granted, to relieve him against a decree which he complains is erroneous. If the appeal had not been allowed, the case, confessedly, would have been at an end, and could not have been removed to the Federal court. prays an appeal, ostensibly that the decree may be reviewed and reversed by this

He

court, and when he obtains it, he 492 *seeks to make this court, the supreme appellate tribunal of the State, the mere conduit through which he may travel to a Federal court. Such a course is unwarranted by any law, by any decision of any court, State or Federal, and is in conflict with the express terms of the act of Congress which, in effect, declares that no case shall be removed from the State courts

We are of opinion that the motions for removal in both cases be overruled.

The order was as follows:

This day came again the parties by their attorneys, and the court having maturely considered the petition and arguments of counsel upon the motion for the removal of this cause to the next Circuit court of the United States, to be holden at Harrisonburg, in the western district of Virginia, is of opinion, for reasons stated in writing and filed with the record, that this is not a proper case for removal under the act of Congress of March 2, 1867. It is, therefore, considered that the motion aforesaid be overruled.

August Term, 1872, Staunton.

1. Decrees Valid and Conclusive until Reversed-Fraud. -A decree of a court of competent jurisdiction, in a suit between proper parties, is valid and conclusive until reversed on some proper proceeding in the same suit and the same court, or on appeal to an Appellate court, unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit.

2. Partition of Land-How Made.-In a suit for partition of land by joint-tenants, tenants in common or parceners, whether partition can be conveniently made in kind or not, and whether the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not. are questions for the court in which the suit is pending to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. 3. Same-Sale Confirmed by Court Cannot Be Impeached Collaterally.-In such a case, a sale made pending the suit by agreement of the parties, in person or by counsel, which sale is afterwards approved and confirmed by the court, is as valid as if made under a previous decree of the court in the suit, and can no more be impeached collaterally than if so made.

4. Same-Revival of Suit-By Motion. In a suit by W against L for partition of land, before any decree in the cause W dies, leaving a widow and infant child. The suit may be revived in their name: and neither a bill nor a scire facias is necessary. but it may be revived upon their motion without notice. Code, ch. 173, § 4, p. 718.

5. Same Same-Immaterial Errors. The order of revival suggests the death of W and that the suit be revived and proceeded in, in the name of "J

the will having refused to qualify, John Newton and John J. Larew were appointed and qualified as administrators of the said testator with his said will annexed. On

and L, administrators with the will annexed,
Wilson, infant son and sole heir, and Wilson.
widow and devisee of said John W. Wilson, 495
deceased." Though the administrators with the
will annexed were not necessary, yet it does not
harm; and though the christian names of the
infant child and the widow are omitted, they are
sufficiently described to identify them.

6. Same—Same—In Name of Next Friend of Infant.-It
would have been out of place to have revived the
suit in the name of a next friend for the infant:
and an order authorizing some person to prose-
cute the suit for the infant might as well
*have been made in a subsequent order as in
the order reviving the suit; and in an origi.
nal suit to set aside the proceedings in the parti-
tion suit, quare if it may not be presumed to have

494

been made.

7. Same-Same- Same-Quære.-Even if there was not a formal assignment of a next friend by an order of a court in the partition suit, it may well be questioned whether such a mere informality would of itself avoid the proceedings in the suit, and the sale made under them: the infant being joined with his mother and the administrators, quare if they may not be considered, in the absence of evidence to the contrary, and for the purpose of giving effect to the proceedings, as his next

friend.

8. Same Same-Irregularities Cannot Be Objected to

in Independent Suit. *-But if there were any irregularities in any of these respects, objection on that account could only be made, if at all, in that suit, or on appeal from the decree therein, and such objection cannot be made in an independent suit. 9. Same Same-Counsel.+-In a suit for partition of real estate by W against L, W dies, and the suit is revived in the name of his widow and infant son. The counsel employed by W will be presumed, in the absence of evidence to the contrary, to be con tinued as counsel in the cause; and a decree for a sale of the property entered upon the consent of the counsel is a valid decree, and the sale under the decree will be sustained.

the 15th day of June 1863, the partition suit aforesaid was revived in the names of the administrators, heir, and widow of the plaintiff, John W. Wilson, by an order made therein in these words: "John W. Wilson, the plaintiff in this cause, having departed this life, it is ordered that this suit be revived and proceeded in, in the name of John Newton and John J. Larew, executors of John W. Wilson, deceased, and administrators with the will annexed, Wilson, infant son and sole heir of John Wilson, deceased, and Wilson, widow and devisee of said John W. Wilson, deceased." On the 14th day of July 1863, an agreement was signed by the counsel of the parties in these words:

"It is agreed by the undersigned, the counsel of the parties in the suit of Wilson v. Lilley, respecting the partition of the Greenville Mills, pending in the Circuit court of Augusta county, that the mill and lot attached may be sold as promptly as practicable on the following terms: onethird. of the purchase money to be paid in hand, and the balance in one and two years, with interest from the day of sale: provided, that the purchaser may pay the whole amount of purchase money so soon as the sale is ratified by the Circuit court of AuThe sale to be subject to the ratification of said court at its next term; gusta county. and possession, if given by the parties authorized to make the sale, to be surrendered at once if the court does not ratify the sale. John Newton is authorized, as commissioner, to make the sale, upon the usual notice of four weeks, and in the usual manner, at half commissions. Given under our hands this 14th day of July 1863. Thomas J. Michie, Harmon & Bell,

John W. Wilson and James M. Lilley being jointly entitled to a valuable prop- 496 erty in the county of Augusta, known as the "Greenville Mills," a suit was brought for partition thereof, by the said Wilson against the said Lilly, in the Circuit court of said county. Pending the suit, and it seems, before any decree was made therein, John W. Wilson died, leaving a widow, Margaret E. Wilson, and an only child, John W. Wilson, who was his heir at law; and also leaving a will, whereby he gave to his wife one-third of his estate, and ap pointed Alexander Brownlee, the father of his wife, his executor. The will was admitted to probate on the 26th of May 1862; and on the same day the executor named in *Irregularities Cannot Be Objected to in Independent Suit. The principal case was cited and approved as to this point in Fox v. Cottage B. F. Ass'n, 81 Va.

682.

Counsel. The principal case was approved in Marrow v. Brinkley. 85 Va. 62, 6 S. E. Rep. 605.

Counsel for Plaintiff. Sheffey & Bumgardner,

Counsel for Defendant. On the 14th day of August 1863, the property was accordingly *sold by said Newton, and William F. Smith became the purchaser, at the price of $18,525. A report of the sale having been made to the court, the cause came on to be further heard on the 19th day of November 1863, on the papers formerly read and the said report; and there being no exception to the and the sale made as stated therein, be ratsaid report, it was decreed that the same, ified and confirmed; and it being suggested that the purchaser desired to pay up the whole amount of the purchase money, and that the parties to the suit desired to borrow the same, it was further decreed that the money should be paid into the Central Bank of Virginia as general receiver of the court, to the credit of the suit; and that the parties, plaintiffs and defendants, should be respectively allowed to borrow such part of said fund, not exceeding one-half thereof, as they may desire, upon executing bond

with sufficient security therefor; which | 498 property; that he was advised *that bonds were to be held by the general reon the death of John W. Wilson, the

ceiver as part of the fund to the credit of suit was properly revived against his heir, the suit. Upon payment in full of the bal-devisee and personal representatives, under ance of the purchase money due by Smith, it chapter 173, 4, of the Code, page 717. was further decreed that the commissioner, "The omission of the Christian names of Newton, should convey to him the property. It appears that accordingly the purchase money was paid in full to the said bank as general receiver aforesaid, and that a conveyance was made to the purchaser. It does not certainly appear what afterwards became of the money, though it was probably lost by the failure of the said bank.

the widow and the heir was, no doubt, accidental, and as they were otherwise clearly identified, it was not material. No process is necessary on such a revival." That respondent was informed and believed that the lawyers consenting to the sale were, in fact, the counsel of all the parties to the suit, and that, in addition to their authority Margaret E. Wilson, widow of the said as counsel, they acted upon the express contestator, John W. Wilson, having intermar-sent and authority of the female plaintiff ried with Joseph Wilson, the said Joseph and of the guardian of the infant, in the Wilson and Margaret E., his wife, and agreement for the sale. That he was adJohn W. Wilson, only child and heir at law vised that the suit having been brought for of the said testator, and an infant suing by partition, it was within the power of the the said Joseph Wilson his next friend, filed court, under the proceedings in the cause their original bill in the said Circuit court or a proper state of proofs, to decree a sale of Augusta county, on the 15th day of Au- of the whole property, as a means of makgust 1867, against the said William ing partition under chapter 124, 3 of the 497 F. Smith; in which bill *the com- Code, page 581. That it was competent plainants, after setting out the facts for counsel to admit of record any fact aforesaid, or some of them and other facts, provable under the pleadings, and to concharge, among other things, that no part sent to any decree which it was within the of the purchase money was borrowed or re- power of the court to make; and that_the ceived by said Margaret E. as guardian of agreement for a sale subject to the ratificaher said infant child; that the bank has tion of the court, and which was, in fact, failed, and the whole of the money has been afterwards ratified by the court, with the lost, as complainants have been informed; approval of all the counsel, was a matter that said Margaret E. has never been as- clearly within the authority of counsel, and signed dower in said property, nor has she binding upon all the parties. That he was ever received anything in lieu of her dower, also advised, that as the female and infant nor has she been called upon or in any way plaintiffs here were certainly parties in said notified to make an election whether she suit, if any error has been committed would take her dower in kind or in cur- therein, it must be corrected by an appeal, rency; that the said order made to revive and not by a new suit; and that a purchaser the suit aforesaid did not bring the said under a decree in that cause, respondent Margaret E. and her child before the court; was protected as against all the parties that it does not so name them as to make therein. It is also stated in the answer, them parties to the suit, and they are no that the mills were burned by the Federal where named in the proceedings; that no army in 1864. amended or supplemental bill, or bill of revivor was filed, nor any next friend or guardian ad litem of the infant appointed, nor any of the requirements of the statute authorizing the sale of the lands of infants complied with; "that the said Margaret E. never employed counsel to attend to her interest in said property-neither of the counsel who consented to a sale of said property had been employed by her, nor were they or either of them authorized to speak for her, &c. Under these circumstances the complainants say, they are advised that the decree aforesaid, confirming the sale of said property to said Smith, is a nullity so far as it affects the rights of said Margaret E. and John W., and they, therefore, pray that the said decree be annulled, the conveyance to the purchaser, if executed, set aside, and the property restored to said Margaret E. and John W., and for general relief.

In June 1868, the said Smith filed his demurrer and answer to the bill. In his answer he said, that no impropriety was alleged against him, and that he stood upon the legal validity of the proceedings under which he bought and then held the

Sundry depositions were taken and filed in the cause. On the side of the defendant, Smith, was the deposition of John Newton, the commissioner who made the sale, and on the side of the plaintiffs were the 499 depositions of *Alexander Brownlee and Thomas A. Brownlee, the father and brother of the plaintiff, Margaret E. Wilson, and the said plaintiff herself.

John Newton, among other things, testified as follows: "I was requested by the counsel on both sides of the case of 'Wilson v. Lilley, &c.,' to see Mrs. Wilson and ascertain from her whether she would consent to the sale of the property, the 'Greenville Mills,' before the decision of the suit. I saw her upon the subject, and told her of the arrangement which was proposed. She seemed to think that it would be better that the property should be sold before the decision of the suit; that the property was in a bad fix, and was doing nobody any good. She said she preferred that it should be so sold. I then notified the said counsel of Mrs. Wilson's wishes on the subject, and my recollection is, that the agreement of counsel filed in said cause for a sale of the

property was then drawn up and signed by swer to a question then put to her by said counsel. I also had several conversations with Alexander Brownlee, guardian of John W. Wilson, on the subject, and he seemed to be satisfied as to the sale being made, and he told me that he would see Mr. Thomas J. Michie, his counsel, on the subject, or had seen him. Mr. Brownlee, as guardian, was present at the sale and made no objection, but seemed to be satisfied. I never heard of any dissatisfaction of any of these parties until the filing of the bill in this cause, although I saw Mrs. Wilson very frequently after the sale." He also proved that the property (meaning the mill and buildings) was burned by the yankees after the purchase by Smith.