38 124 PACIFIC REPORTER of a court of record is presumed to be valid, but, where it shows upon its face that it was rendered without jurisdiction, this presumption cannot longer obtain. The effect of the paragraph to which the demurrer was sustained was to deny that plaintiffs had a judgment and was a sufficient answer to require plaintiff to show a judgment regular on its face. The case of Ritchie v. Carpenter, 2 Wash. 512, 28 Pac. 381, 26 Am. St. Rep. 877, and Aultman, Miller & Co. v. Mills, 9 Wash. 68, 36 Pac. 1046, cited by plaintiffs as supporting their contention that the answer in this case did not sufficiently negative the jurisdiction of the court, are not in point. In both these cases the record on its face showed service, and the question was as to the right of the defendants in the case to introduce other testimony to contradict the record. Other questions are raised in the assignment of errors and in the briefs of counsel, but they cannot be considered because their decision depends upon the evidence in the case. While some evidence is contained in the case-made, it nowhere recites that it contains all the evidence introduced at the trial. Wagner v. Sattley Mfg. Co., 23 Okl. 52, 99 Pac. 643, and cases there cited; Finch v. Brown, 27 Okl. 217, 111 Pac. 391; Tootle, Wheeler & Motter Mfg. Co. v. Floyd, 28 Okl. 308, 114 Pac. 259. This case should be reversed and remanded for further proceedings not inconsistent with this opinion. PER CURIAM. Adopted in whole. action against defendants, praying damages in the sum of $60, with interest, alleged to have been occasioned through the negligence of defendants' employés or servants in breaking a large plate glass in plaintiffs' building. To this petition defendants filed a general denial, and upon the issues thus joined, a jury being waived, the cause came on for trial before the court, which rendered judgment for defendants. Motion for new trial was filed and overruled and exception allowed, and the cause has been lodged in this court for review. The findings of fact upon which the trial court rendered judgment were as follows: "(1) The plaintiffs at the time of the accident were the owners of a store building in Mangum, Greer county, Oklahoma, known as the 'Dixie Store Building.' "(2) The plaintiffs had leased the east room on the ground floor of said building to the defendant, Oklahoma Trading Company, who was occupying said room as a grocery store, and had leased the west room on the ground floor of said building to one George E. Clark, who was occupying said room as Oklahoma Trading a dry goods store. defendant "(3) The Company was a concern owned wholly and solely by the defendant El Reno Wholesale Grocery Company, and was under the direct control and management of the El Reno Wholesale Grocery Company. Oklahoma Trading "(4) The defendant Company received a car load of flour, and was having the same stacked on the outer edge of the sidewalk in front of the room leased by it, and in front of the east half of the room leased by said George E. Clark. "(5) The manager of the Oklahoma Trading (33 Okl. 81) HAMILTON et al. v. OKLAHOMA TRAD- Company, G. E. Baker, made a contract with ING CO. et al. two colored men, Will Hunter and Jim John(Supreme Court of Oklahoma. May 14, 1912.) son, to truck the flour from the sidewalk into (Syllabus by the Court.) MASTER AND SERVANT (§ 316*)-INJURIES TO Laborers engaged to use their employer's truck and to truck a car load of flour from the sidewalk into a building are servants, and not independent contractors. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. § 316.*] the building, and authorized the negroes to use its trucks. "(6) The defendant Oklahoma Trading Company agreed to pay the negroes $3 to truck the flour from the sidewalk into the store. "(7) Hunter and Johnson were paid $3 according to contract for trucking the flour in. This was paid solely in consideration of the Error from District Court, Greer County; manual labor in moving said flour. G. A. Brown, Judge. Action by C. P. Hamilton and H. Mathewson against the Oklahoma Trading Company and the El Reno Wholesale Grocery Company. Judgment for defendants, and plaintiffs bring error. Reversed and remanded. Powers & Powers, of Mangum, for plaintiffs in error. C. C. Wells, of Mangum, for defendants in error. DUNN, J. This case presents error from the district court of Greer county. Plaintiffs in error, plaintiffs below, brought their There were no other specifications in the contract and no other directions given for or during its performance. "(8) There was a large plate glass window in the east side of the building occupied by the said George E. Clark, which was inserted in a recess about 18 inches from the property line. "(9) There was an ordinary table 6 or 7 feet long and about 3 feet wide situated immediately in front of the glass window and extending into the sidewalk about 18 inches, on which Clark displayed his clothing. "(10) The sidewalk between the glass and | 65 L. R. A. 445, 99 Am. St. Rep. 879, and flour was about 10 feet wide. Kniceley v. West Va. Midland Ry. Co., supra; Chas. T. Derr Const. Co. v. Gelruth, 29 Okl. 538, 120 Pac. 253. "(11) Will Hunter, while moving the flour with defendants' trucks, negligently stumbled, lost his balance, fell against the table, and caused the table to break the glass, which at the time of the accident was entirely concealed from view by advertising and display curtains and cloth. There was sufficient room between the flour on the outer edge of the sidewalk and the table in front of the glass for the removal of the flour with perfect safety to the window. "(12) The city ordinances of Mangum, Okl., authorize merchants receiving goods to stack them in front of buildings, but require removal of said goods within reasonable time. "(13) The glass was totally destroyed, and plaintiffs were forced to replace said glass at a cost to plaintiffs of sixty ($60) dollars, a reasonable cost. The Court of Appeals of Missouri in the case of O'Neill v. Blase, supra, stating the facts and commenting upon the case of Waters v. Fuel Company, 52 Minn. 474, 55 N. W. 52, 38 Am. St. Rep. 564, said: "The employé claimed to be an independent contractor was a teamster who delivered coal for defendant at so much per ton. He owned the team and running gear of his wagon, while defendant furnished him the wagon box. The injury complained of occurred from his carelessness in failing to properly close a coal hole on certain premises, where, under the agreement aforesaid, he had delivered coal to a customer of defendant. In a careful review of the law Judge Vanderburg said that, in determining the question wheth "(14) Neither the Oklahoma Trading Com-er the relation of the teamster and employer pnay, or its agents or servants, received any permission from the plaintiffs or from Clark to stack said flour on the sidewalk, but no objections were made thereto. "Conclusions of Law. "(1) The contract G. E. Baker made with Hunter and Johnson made the negroes independent contractors. "(2) There was not such a duty imposed on the Oklahoma Trading Company to remove said flour at the time of the accident as to impose any liability on it for the damage resulting from the negligence of such independent contractors. “(3) The plaintiffs take nothing by this action, and that the defendants recover their costs." | was that of master and servant, it was not A number of errors are assigned and ar- WILLIAMS, KANE, and HAYES, JJ., con- cur. (33 Okl. 122) involved. The prayer of the petition was CHICAGO, R. I. & P. RY. CO. v. BRAZ- that the state court proceed no further, ex ZELL. cept to make the order of removal, as re (Supreme Court of Oklahoma. May 14, 1912.) quired by law. Accompanying the said peti (Syllabus by the Court.) 1. APPEAL AND ERROR ($ 553*)-RECORD SCOPE AND CONTENTS-PETITION FOR REMOVAL. A petition and bond for removal, having been duly incorporated in a valid case-made, thereby becomes a part of the appeal record without a bill of exceptions. [Ed. Note. For other cases, see Appeal and [1] Counsel for defendant present the deError, Cent. Dig. §§ 2461-2471; Dec. Dig. §nial of removal by the state court as ground 553.*] 2. REMOVAL OF CAUSES (§ 89*)-PROCEEDINGS-EFFECT OF APPLICATION. The question presented to the trial court when a petition for removal is filed, accompanied by proper bond, is one of law arising on the sufficiency of the petition, and, where the question of the right of removal arises out of the facts averred, the same cannot be tried in the state court; for jurisdiction to hear and determine this question is vested exclusively in the federal court to which removal is sought. [Ed. Note.-For other cases, see Removal of Causes, Cent. Dig. §§ 189, 192-197, 200, 201; Dec. Dig. § 89.*] Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. for reversing or setting aside of the judgment rendered herein. It is contended by counsel for plaintiff that the question is not properly preserved, because the petition for removal is not a part of the judgment roll, and that, in order to make it a part of the record on appeal, the petition and proceedings with reSpect thereto should be incorporated into a bill of exceptions, and also that if the question is properly raised the case was not removable. In neither of these contentions are we able to concur. The record before us is a case-made, which, for this purpose, takes the place of a bill of exceptions. Plaintiff's petition, the petition for removal, and the bond are all made part of the case-made, du Action by C. M. Brazzell against the Chicago, Rock Island & Pacific Railway Com-ly certified by the trial judge, and are regupany. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions. C. O. Blake, H. B. Lowe, R. J. Roberts, and W. H. Moore, all of El Reno, and J. H. Woods, of Shawnee, for plaintiff in error. H. H. Smith, of Shawnee, for defendant in error. larly before us for our consideration. Where such is the case, a bill of exceptions is not necessary in order to save the appeal record. Burdick's New Trials and Appeals, § 207, and cases cited: Leavenworth, Northern & Southern Ry. Co. v. Herley et al., 45 Kan. 535, 539, 26 Pac. 23; Shumaker et al. v. O'Brien, 19 Kan. 476. [2] On the question of whether this action DUNN, J. This case presents error from was removable or not, we think there can be the district court of Pottawatomie county. no doubt. In at least three cases decided On November 3, 1910, C. M. Brazzell, defend- by this court, the question has been passed ant in error, as plaintiff, brought his action upon, all adversely to plaintiff's contention. against plaintiff in error for the recovery of Choctaw, O. & G. Ry. Co. v. Burgess, 21 Okl. $25,000 damages for personal injuries, alleg- 110, 95 Pac. 606; Bolen-Darnell Coal Co. v. ed to have beer. received by him on or about Kirk, 25 Okl. 273, 106 Pac. 813, 26 L. R. A. August 17, 1910. Plaintiff alleged in his peti- (N. S.) 270; Western Coal & Mining Co. et al. tion that he was a resident of the state of v. Osborne (Okl.) 119 Pac. 973. The question Tennessee. Within due time and prior to presented to the trial court in this case was filing its answer, the defendant filed a peti- simply one of fact, which all of the later fedtion for removal, in which it alleged that the eral as well as state courts hold is determintime had not elapsed within which it was able only by the federal Circuit Court, the permitted to answer the petition, and that the rule being that when a petition for removal plaintiff was, at the time of the institution of is filed, accompanied by proper bond, the only the suit, and still was, a citizen of the state question then presented for determination by of Oklahoma residing in Pottawatomie coun- the state court is one of law arising on the ty; that the defendant was, at the time of sufficiency of the petition. And where the the institution of the suit, and ever since had question of the right of removal arises out of been, a corporation organized under and by the facts averred, the question cannot be tried virtue of the laws of the states of Illinois in the state court, but jurisdiction to hear and and Iowa, with its principal place of business determine it is transferred to and vested in in the city of Chicago, and was a nonresident the federal court to which the removal is of the state of Oklahoma; that the controver- sought. This statement of the rule appears sy was between citizens of different states, to meet with the sanction of all of the courts and was a civil action, wherein more than which have latterly had occasion to pass on $2.000, exclusive of interest and costs, was the same. See Black's Dillon on Removal of Causes, §§ 191, 192; Moon on the Removal of connection with the record, show that the case is within the act of Congress, it is the duty of the state court, under the statute, to 'accept said petition and bond and proceed no further in such suit.' All rightful jurisdiction of the state court over the cause immediately ceases. It makes no difference whether that court grants or refuses an order of removal. Its jurisdiction being at an end, any further step taken in the cause in that court, or any order, judgment, or decree made by it, is erroneous and voidable, if not absolutely void. And however long the question of the removability of a suit may be litigated in the federal courts, and although those courts may ultimately decide to remand it to the state court, no valid action or proceeding can be taken in the state court before the remand." The same doctrine is announced at section 177 of Moon on the Removal of Causes, as follows: "The later decisions deny to the state court all authority to inquire into the truth of the facts alleged in the petition for removal. Its statements of the facts of the case, no matter whether true or false, must be accepted as true by the state court. The plaintiff may, in the Circuit Court of the United States, question the truth of the petition for removal; but he cannot be heard to do so in the state court." Discussing the apparent conflict which exists between the authorities on the question of jurisdiction to determine the right of removal in section 191, Black's Dillon on the Removal of Causes, supra, it is said: "In regard to the question whether the state court or the federal court is invested with jurisdiction to determine upon the removability of the cause, and the regularity and sufficiency of the steps which have been taken to effect its removal, there is much apparent conflict between the authorities. But they may be nearly all reconciled, and the true rules evolved, by paying due attention to the difference between questions of fact and questions of law, and to the nature of the questions which present themselves to the state court and the federal court, respectively, upon an application for removal. In the first place, it is settled beyond any manner of doubt that questions of fact arising upon an application for the removal of a cause are to be tried and determined in the federal court alone. Issues of fact upon the petition cannot be raised in the state court. That court must take the facts to be as they are stated in the record and the petition; it has no jurisdiction to pass upon any such questions; that is the exclusive province of the federal court, citing Stone v. South Carolina, 117 U. S. 430, 6 Sup. Ct. 799 [29 L. Ed. 962]; Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262 [30 L. Ed. 1159]; Crehore v. Ohio & M. R. Co., 131 U. S. 240, 9 Sup. Ct. 692 [33 L. Ed. 144]; Sinclair v. Pierce [C. C.] 50 Fed. 851; Waite v. Phoenix On this question Circuit Judge Simonton Ins. Co. [C. C.] 62 Fed. 769; Powers v. Ches- of the Circuit Court for the Western Disapeake & O. R. Co. [C. C.] 65 Fed. 129; Fi-trict of North Carolina, in the case of Postal delity Trust Co. v. Newport News & N. V. Co. [C. C.] 70 Fed. 403. For example, if any question is raised as to the actual citizenship of either of the parties, when the removability of the case depends upon the diversity of their citizenship, this issue is triable only in the federal court; the state court must assume that the facts as to citizenship are as they appear in the record and are alleged in the petition for removal; and it cannot receive and consider any evidence to the contrary, citing Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct. 1050 [30 L. Ed. 167]; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306 [34 L. Ed. 963]; De Wolf v. Rabaud, 1 Pet. 476 [7 L. Ed. 227]." On the procedure proper to be followed by a state court on the filing of an application for removal, when the same is duly and seasonably made, the same authority, at section 192, says: "When an application for the removal of a cause from a state court to a federal court is duly and seasonably made by the filing of a proper and sufficient peti In addition to the authorities cited in support of the texts above noted, we note the following: Postal Telegraph Cable Co. v. Southern Ry. Co. (C. C.) 88 Fed. 803; Carson v. Hyatt et al., 118 U. S. 279, 6 Sup. Ct. 1050, 30 L. Ed. 167; Kansas City, Ft. S. & M. R. Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963. Telegraph Cable Co. v. Southern Ry. Co., supra, said: "The petition for removal, with proper bond, was filed before the time for answering had expired. This petition averred the two jurisdictional facts: (1) The diversity of citizenship; (2) that the matter in controversy exceeded the value of $2,000, exclusive of interest and costs. Upon the truth of these facts, of both of them, depends the right of removal. Powers v. Railway Co., 169 U. S. 99, 18 Sup. Ct. 264 [42 L. Ed. 673]. Issue was joined upon one of these facts-the jurisdictional amount; and the superior court, inadvertently it is sure, passed upon that issue. It could be decided nowhere but in this court. Carson v. Hyatt, 118 U. S. 279, 6 Sup. Ct. 1050 [30 L. Ed. 167]; Carson v. Dunham, 121 U. S. 421, 7 Sup. Ct. 1030 [30 L. Ed. 992]; Railway Co. v. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262 [30 L. Ed. 1159]; Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306 [34 L. Ed. 963]. This being the case, and the petition on its face stating the two essential facts for removal, state court could proceed no further, upon | South Carolina, and decided that It was erthe filing of the petition and bond; that is, ror in the state court to proceed further just so soon as they were filed. Gordon v. with the suit after the petition for removal Longest, 16 Pet. 97 [10 L. Ed. 900]; Insur- was filed, because the Circuit Court alone ance Co. v. Dunn, 19 Wall. 214 [22 L. Ed. had jurisdiction to try the question of fact 68]; Kern v. Huidekoper, 103 U. S. 485 [26 which was involved. This rule was again L. Ed. 354]; Railroad Co. v. Koontz, 104 U. recognized at this term in Carson v. DunS. 5 [26 L. Ed. 643]." ham, 121 U. S. 421 [7 Sup. Ct. 1030, 30 L. Ed. The best discussion which we have seen 992], and is in entire harmony with all that on the proposition is contained in the case had been previously decided, though not of Burlington, Cedar Rapids & N. Ry. Co. with all that had been said in the opinv. Dunn, 122 U. S. 513, 7 Sup. Ct. 1262, 30 ions in some of the cases. To our minds, L. Ed. 1159, in which the late Chief Justice it is the true rule, and calculated to proWaite of the Supreme Court of the United duce less inconvenience than any other. The States, discussing the previous holding of theory on which it rests is that the recthat court on this question, said: "It must ord closes, so far as the question of rebe confessed that previous to the cases of moval is concerned, when the petition for Stone v. South Carolina, 117 U. S. 430, 432 removal is filed and the necessary security [6 Sup. Ct. 799, 29 L. Ed. 962], and Carson furnished. It presents, then, to the state v. Hyatt, 118 U. S. 279 [6 Sup. Ct. 1050, 30 court a pure question of law, and that is L. Ed. 167], decided at the last term, the whether, admitting the facts stated in the utterances of this court, on that question, petition for removal to be true, it appears had not always been as clear and distinct on the face of the record, which includes the as they might have been. Thus, in Gordon petition and the pleadings and proceedings v. Longest, 16 Pet. 97, 103 [10 L. Ed. 900], in down to that time, that the petitioner is speaking of removals under section 12 of the entitled to a removal of the suit. That quesjudiciary act of 1789, it was said, 'it must tion the state court has the right to decide be made to appear to the satisfaction of the for itself; and if it errs in keeping the case, state court that the defendant is an alien, and the highest court of the state affirms its or a citizen of some other state than that decision, this court has jurisdiction to corin which the suit was brought;' and in Rail-rect the error, considering, for that purpose, way Company v. Ramsey, 22 Wall. 322, 328 [22 L. Ed. 823], that, ‘if upon the hearing of the petition it is sustained by the proof, the state court can proceed no further.' In other cases expressions of a similar character are found, which seem to imply that the state courts were at liberty to consider the actual facts, as well as the law arising on the face of the record, after the presentation | cuit Court, and have the suit docketed there. of the petition for removal. At the last term it was found that this question had become a practical one, about which there was a difference of opinion in the state courts, and to some extent in the circuit courts, and so, in deciding Stone v. South Carolina, we took occasion to say: 'All issues of fact made upon the petition for removal must be tried in the Circuit Court; but the state court is at liberty to determine for itself whether, on the face of the record, a remov-petition for removal; for the Circuit Court al has been effected. It is true, as was remarked by the Supreme Judicial Court of Massachusetts, in Amy v. Manning, 144 Mass. 153 [10 N. E. 737], that this was not necessary to the decision in that case; but it was said on full consideration and with the view of announcing the opinion of the court on that subject. Only two weeks after that case was decided, Carson v. Hyatt came up for determination, in which the precise question was directly presented, as the allegation of citizenship in the petition for removal was contradicted by a statement in the answer, and it became necessary to determine where the fact really was. We there only the part of the record which ends with the petition for removal. Stone v. South Carolina, 117 U. S. 430 [6 Sup. Ct. 799, 29 L. Ed. 962], and cases there cited. But, even though the state court should refuse to stop proceedings, the petitioning party may enter a copy of the record of that court, as it stood on the filing of his petition, in the Cir If the Circuit Court errs in taking jurisdiction, the other side may bring the decision here for review, after final judgment or decree, if the value of the matter in dispute is sufficient in amount. Railroad Company v. Koontz, 104 U. S. 5, 15 [26 L. Ed. 643]. In that case, the same as in the writ of error to the state court, the question will be decided on the face of the part of the record of the state court which ends with the 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." From the foregoing authorities, it will be seen that, notwithstanding the fact that a trial has taken place and a judgment rendered in favor of plaintiff, the proceedings in the state court were conducted at a time when it was wholly without jurisdiction. The fact that it may have eventuated that |