Opinion
No. 9041.
March 3, 1939.
Application for Leave to File Petition for Mandamus; Prohibition, Certiorari and Injunction; Wm. H. Atwell, Judge.
Proceeding in the matter of the application of J.S. Satterley for leave to file petition for mandamus, prohibition, certiorari, and injunction.
Application denied.
Chas. B. Wallace, of Center, Tex., for relator.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
The petition to this Court of J.S. Satterley seeks mandamus, prohibition, certiorari and injunction against the judge of a district court and against the judge of a State court of the State of Texas touching proceedings in a case filed originally against Satterley and another in the State court and removed by Satterley to the district court. On motion to remand the same, the district judge ordered a remand. The order is not included in the record presented to us, but it appears from the petition that it went upon the ground that Satterley, a citizen of Louisiana, had waived his right of removal by filing a cross-action in the case in the State court before applying for removal, and that Satterley claims that his cross-action was filed before a disclaimer was made by his co-defendant, and that this disclaimer for the first time rendered the case a removable one, and that on these facts the order of remand was incorrect. Whether correct or incorrect, the district judge expressed his opinion that the case was not one proper for removal, and his judgment of remand went upon the merits. That judgment is not reviewable in this court by any form of procedure. Employers Reinsurance Corporation v. Bryant, Judge, 299 U.S. 374, 57 S.Ct. 273, 81 L.Ed. 289. This court being without jurisdiction to review the order of remand, the petition is denied.