
    Texas & Pacific R’y Co. v. A. F. McAllister.
    (Case No. 4807.)
    1. Jurisdiction.— When a petition is filed to remove a cause pending in the district court of a state to the United States circuit court, there can be no doubt of the power of the state court to pass on the sufficiency of the petition. This conclusion is reached after a review of R. R. Co. v. Koontz, 104 U. S.; Ins. Co. v, Dunn, 19 Wall., 214; Removal Causes, 100 U. S., 457; Ins. Co. v. Pechner, 95 U. S., 185, and Amory v. Amory, id., 187.
    2. Plead ins.— The petition- for the removal of a cause from a state to a federal court under article 640 of the Revised Statutes of the United States is a pleading, and governed in a great measure by the rules of pleading; following United States supreme court in Goldwashing & Water Co. v. Keyes, 96 U. S., 199.
    3. Same.— Such a petition when presented is defective when it states only as a conclusion that the defendant has a defense arising under the charter granted to the defendant by the United States, without stating upon what facts it bases that conclusion, when neither the charter, nor anything connected with the case, shows that such defense exists or can possibly arise.
    4. Statute construed.— The object of the federal law which permits a defendant to procure the removal of a cause from a state to a federal court on his petition that he has a defense arising under the constitution, or a treaty or law of the United States, was to have federal laws construed by the United States courts, and -thereby secure uniformity in their interpretation. It was not designed that the law authorizing such removal could be used as a pretext to change the jurisdiction when no construction of a United States statute was involved.
    5. Continuance. — The action of the district court in refusing a continuance will not be revised unless a bill of exceptions to the ruling has been reserved, following Morris v. Files, 40 Tex., 374, and other cases cited.
    6. Statement of facts.— In the absence of a statement of facts or bill of exceptions, the supreme court will not consider the action of the court below in receiving or rejecting evidence, nor will it pass on the correctness of charges given or refused; following Tucker v. Willis, 24 Tex., 247, and other cases cited. The exception to this rule established in McGaughey v. Bendy, 27 Tex., 535, recognized.
    
      7. Pbaotice.— The rule announced in McGuire v. ÍTewbill, 58 Tex., 31"4, that the supreme court will not consider a statement of facts filed after the adjournment of the term, if an order has not heen made and entered of record during the term allowing such statement to be made up, signed and filed within ten days after adjournment, adhered to.
    . Appeal from Harrison. Tried below before the Hon. A. J. Booty. ■
    The following statement by appellee is adopted:
    A. F. McAllister instituted suit in the district court of Harrison county, Texas, on the 16th day of April, A. D. 1879, against the appellant, the Texas & Pacific Bailway Company, alleging that appellant was a corporation duly, created under the laws of Texas, with its main office in said city of Marshall, Texas; that on the 10th day of February, 1879, the said appellant was engaged in operating a railway for transportation of freight and passengers, from the city of Shreveport, in Louisiana, to the city of Marshall, in Texas; that on said day and date appellee was a passenger on one of the trains of appellant (who was defendant below), going from Shreveport, Louisiana, towards the city of Marshall; that when said train reached a point about three and one-half miles from Shreveport, the passenger coach of said train was thrown from and off of the railroad track, upsetting, and that plaintiff (appellee here) was a passenger in said coach. e
    That the cause of said coach running off from and being thrown from said track was the breaking of an iron rail on which said train was running, .which breaking of said rail was caused by the bad condition of the cross-ties which supported said rail, said cross-ties-being rotten and entirely worthless for the use made of them. That the entire line of road from Marshall to Shreveport was unsafe for the running of trains, and had been for more than one year; that almost all the cross-ties on said road were rotten and insecure,- and made it dangerous for passengers traveling over same in cars of defendant; that such condition showed upon part of defendant gross negligence.
    That said train on which appellee was traveling, as aforesaid, as a passenger, was negligently and carelessly conducted by the persons in charge thereof, they being employees of defendant; that said train was a long one, composed of about sixteen freight cars, and there was a passenger coach (in rear of .said freight cars), in which appellee and the other passengers were riding; that said rail was broken, as aforesaid, by the engine pulling said train, or by one of the aforesaid freight cars; that the speed of said train was not checked, because the brakeman,(whose post of duty was on top of said freight cars, and at the brakes, said brakes being so attached to said cars as that they can be worked only on top of said cars,) was not at his post'of duty, but said brakeman was on the engine; with the engineer and fireman, and absent from his said post of duty; that had said brakeman been on top of said freight cars, and at said brakes, as was his duty to be, he could, by applying said brakes, have wholly stopped said train, or at least have greatly checked the speed thereof, and prevented the accident.
    That by the gross negligence and carelessness of defendant, its employees and agents, the accident was caused, and appellee was séverely injured by being thrown from one side of the coach to another, striking seats and other objects in said coach, by which the meta carpal bone of the little finger on right hand was broken, his back badly bruised over the lumbar region, and the three lower lumbar vertebrae badly bruised and hurt, so that his back and spine are seriously and permanently injured; that from said injuries he suffered great and constant pain, and still continues to suffer till this time, and was, for four,weeks after receiving said injuries, confined to his bed, and he was unable to leave same; that he has, by said injuries, been rendered unable to carry on and attend to his business of farming and planting, thereby causing great loss to him; that by the injuries aforesaid, caused by the wilful negligence and carelessness of defendant and its servants, he has been greatly damaged, to wit, in the sum of §30,000.
    On the 13th day of September, 1879, the defendant filed its first amended answer, setting out general demurrer, general denial, and specially that it is a corporation formed under the laws of the United States, and has a railroad which it operates in the state of Texas and state of Louisiana. -
    That the iron and cross-ties, and other superstructure upon its road-bed were all of good and substantial character; that the iron was purchased from first class iron manufacturers, and the rails were first class in all respects, and the cross-ties on which the said iron rested are sound, and of sufficient size and strength, and in all respects equal to-cross-ties usually placed on first class rad ways; and the servants of defendant, in constructing said railway, and in keeping" and maintaining said road, and in running and operating the trains of defendant, were competent and skilful men, careful and prudent in the discharge of all their duties upon said road; and that especially were the railroad track, iron rails and cross-ties sound, good,, and in all respects substantial at the place where the accident occurred at which appellee is said to have been injured; and that the servants of defendant in charge of said railroad train at the time and place- mentioned were skilful, competent, faithful, and conducted said train in a prudent, cautious and careful manner; and denied that accident was caused by carelessness, negligence or unskilfulness of any of defendant’s agents or servants, either in running or operating 'of said train, or in the selection of the said iron rails or' cross-ties, or in the construction of said road, but that the accident was caused (if at all) by the action of weather upon the railroad track, such that no human foresight could see or prevent. That at the time said supposed accident occurred the weather was extremely cold, and that from effects of cold (the iron rail alleged to have been broken) became and was rendered brittle and liable to break, and did break by reason thereof, and not because of any inherent defect in said rail, and not because of unsoundness of cross-ties which supported the rail, and not because of any negligence or fault of defendant, but by reason of said above facts. And that this cause is now pending in the United States circuit-court for the eastern district of Texas, at Jefferson; that appellee has appeared there, and consented to continuance of cause.
    February 13, 1879, plaintiff filed first supplemental petition, containing general demurrer, special exception to that part of answer alleging that the suit is in United States court, because plea in abatement, and not sworn to; and that part about cold weather causing the rail to break, because it fails to show that defendant could not have prevented same by the exercise of utmost prudence and care; and that part about weather being cold, and a special denial about cause being in United States court.
    May 2, 1881, defendant filed trial amendment, setting out more specifically the fact that the cause was in United States circuit court, and swearing to same.
    May 9, 1879, defendant filed its petition for a removal of this -cause to United States circuit court for the eastern district of Texas, at Jefferson, alleging that the suit of plaintiff was for $30,000, against defendant, for wrong and injuries, and that it arises under the laws of the United States. That defendant is a- corporation created, existing and organized under and by virtue of certain acts of the United States, to wit: “ An act entitled an act to incorporate the Texas & Pacific Railroad Company, and to aid in the construction of its road, and for other purposes,” approved March 3, 1871, and an act supplementary thereto, approved May 2,1872.
    . That defendant has a defense to the said action, arising under and by virtue of a law of the United States, to wit, said act of incorporation. That defendant is not a banking corporation, but is a railroad corporation, authorized to construct, etc., a railroad to and from certain places, in said acts of congress above recited. That defendant offered good and sufficient security, conditioned as required, by law, and prayed for a removal to United States circuit court for the eastern district of Texas, at Jefferson, signed by counsel.
    May 9, 1879, defendant filed its bond for a removal, in sum of $500, conditioned as law requires, and with two securities, and marked “Approved: J. L. Garrison, Clerk.”
    Plaintiff, on 22d day of May, 1879, filed his exceptions to petition for a removal, which were general demurrer, and specially that the petition does not show what the defendant’s defense is to said action, arising under and by virtue of a law of the United States, and a denial that said defendant is a corporation created, etc., by act of congress.
    May 22, 1879, the court overruled the petition for a removal, but adjudged the bond for removal sufficient.
    May 19, 1881, the cause was tried, and resulted in a verdict in favor of plaintiff for the sum of $8,000; judgment of court thereon. Order overruling motion for new trial, and notice of appeal. Statement of facts and bills of exceptions filed after court adjourned.
    
      Geo. L. Hill, N. A. Steadman and A. Poke, for appellee,
    cited, on sufficiency of the petition to remove the cause, Keyes v. Gold Washing and Water Company, 6 Otto, 199; Pechner v. Insurance Company, 5 Otto, 183; Amory v. Amory, 5 Otto, 186; Sargent v. Stone, Am. Law Reg., vol. 20, No.1, p. 24; Southern Law Rev., vol. 3, No. 1, p. 1; Railway Co. v. Ramsey, 22 Wall., 322; Ex parte Grim-ball, Reporter, vol. 7, p. 362; Sewing Machine Cases, 18 Wall., 553; Koontz v. R. R. Co., 104 U. S., 40.
    On absence of defense, Const. of U. S., art. III; Keyes v. Gold Washing and Water Company, 6 Otto, 199; Cohens v. Virginia, 6 Wheat., 379; Osborn v. U. S. Bank, 9 Wheat., 534; Cooley’s Const. Lim., pp. 173, 391.
    That congress has no power to incorporate a railway in a state for private emolument, Const. U. S., art. I, sec. 8; United States v. Reese et al., 2 Otto; United States v. Cruikshank et al., 2 Otto; Cooley’s Const. Lim., p. 173.
    That appearance of plaintiff in federal court did not give it jurisdiction, Removal Cases, 10 Otto, 475; Ramsey v. Railway Co., 22 Wall., 322; Insurance Co. v. Dunn, 19 Wall., 123; Lyell v. Guadalupe County, 28 Tex., 57.
   Willie, Chief Justice.—

This action was brought to recover

damages for injuries alleged to have been received by appellant whilst a passenger upon the cars of the Texas & Pacific Railway Company, caused by the unsound condition of the track oyer which said cars were being transported at the time, and the gross carelessness of the employees of the company.

The appellant pleaded a general demurrer, general denial, and specially that the road was in good condition, its employees skilful and competent, and that the accident was caused by the action of cold weather upon the iron rails, such as no human foresight could anticipate or prevent.

It also pleaded in abatement that, at the time of trial of the cause in the district court of Harrison county, the same suit was pending in the United States court at Jefferson, Texas, which last plea was overruled and stricken out.

Something over a year after the commencement of this suit appellant filed its petition in the court below to remove the cause to the circuit court of' the United States for the eastern district of Texas, which application was overruled, and the cause proceeded to trial, and resulted in a verdict and judgment for appellee for $8,000, from which the railway company have appealed to this court.

The first assignment of error brings in question the ruling of the court below refusing to remove this cause to the United States circuit court on application of the appellant.

The petition for removal is based on article 640 of the Revised Statutes of the United States, which reads as follows: “Any suit commenced in any court other than a circuit or district court of the United States against any corporation, other than a banking corporation organized under a law of the United States, or against any member thereof as such member, for any alleged liability of such corporation, or of such member as a member thereof, may be removed for trial in the circuit court for the district where such suit is pending, upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the constitution, or of any treaty or law of the United States; such removal in 1 all other respects shall be governed by the provisions of the preced- ‘ ing section.”

The application stated that the appellant was not a banking but á railroad corporation, incorporated by virtue of certain acts of congress of the United States, viz.: An act entitled “An act to incorporate the Texas & Pacific Railway Company, and to aid in the construction of its road, and for other purposes,” approved March 3, 1871, and an act supplementary thereto, approved May 2, 1872. It further stated that the company had a defense to the said action arising under and by virtue of a law of the United States, viz., “ the said act of incorporation.” This petition was not verified by oath, but was accompanied by a sufficient bond conditioned in terms of the law.

The application for removal was refused by the court, and we are asked by appellant to revise its action in this respect.

By reference to the section of the Revised Statutes cited above, it will be seen that the right to removal under that section depends upon two facts, which must be brought to the notice of the court in the application.

1. That a federal corporation, other than one for banking purposes, or some member of it, must be a party defendant to the suit; and

2. Such defendant must have a defense arising under or by virtue of the constitution, or of some treaty or law of the United States.

A third requisite, applying more particularly to the manner in which the last mentioned fact shall be made known to the court, is that'the petition shall be verified by oath, at least as to the character of the defense by reason of which it is sought to remove the cause.

As the petition in this case states in general terms the two facts upon which a removal may be had under the above section, it becomes necessary to inquire whether such a general statement as to the nature of the defense is sufficient. Preliminary to a consideration of the sufficiency of the petition in this respect, is the question of whether or not the judge below had the power to inquire into such sufficiency and refuse the application, if in his opinion it did not come up to the requisites of the law.

It is contended by appellant that no such power exists in the state court, and we are referred, among other authorities, to section 639 of the United States Revised Statutes to sustain this position. It is there said, in substance, that at the time of filing the petition for removal the party applying must offer in the state court good and sufficient surety for the performance of certain acts, and that it shall thereupon be the duty of the state court to accept the surety and proceed no further in the cause against the petitioner.

If this point or any other made by appellant had been passed upon authoritatively by the supreme court of the United States, we .should consider it decisive of the question and follow it without discussion. The law under consideration is an act of the national legislature governing the procedure of courts in which it may be administered, and from a decision of this court against a party claiming a right under it a writ of error lies to that court, and its decision would govern us in its construction.

But we are referred to no case in which the exact position taken by the appellant has been indorsed by that court. The cases relied on in the brief of' counsel hold that when a sufficient petition has been filed it is the dúty of the state court to proceed no further in the cause; its jurisdiction has closed and that of the United States court has commenced.

The language of the court in R. R. Co. v. Koontz, 104 U. S., 14, is: “ That when a sufficient cause for removal is made in the state court the rightful jurisdiction of that court comes to an end, and no further jurisdiction can be had there unless in some form its jurisdiction is restored.”

In Kern v. Huidekoper, 103 U. S., 490, the court say, following the decision of Ins. Co. v. Dunn, 19 Wall., 214: “If the cause is removable and the statute is complied with, no order of the state court for its removal is necessary to confer jurisdiction on the court of the United States, and no refusal of such an order can prevent that jurisdiction from attaching; ” and further, they say that “ when the prerequisites for removal have been performed, the paramount law of the land says that the case shall be removed.”

In the Removal Causes, 100 U. S., 457, the court say: “ The petition filed in this case was sufficient in form; enough appeared on its face to entitle the petitioner to his removal; ” but in another part of the opinion it also says: “We fully recognize the principle heretofore asserted in many cases, that the state court is not required to let go its jurisdiction until a case is made which upon its face shows that the petition can remove the causé as a matter of right.”

These decisions all leave a discretion with the state court to at least pass upon the sufficiency of the case made by the petition. They do not require that it should surrender'its jurisdiction until a petition, complying with the provisions of the statute, is presented to the court.

And it was expressly held in Ins. Co. v. Pechner, 95 U. S., 185, that “ The right of removal is statutory. Before a party can avail himself of it, he must show upon the record that his is a case that comes within the statute. ... If he fails in this, he has not, in law, shown to the court that it cannot ‘ proceed further with the cause.’ Having once acquired jurisdiction, the court may proceed until it is judicially informed that its pouter over the cause is suspended.”

And in Amory v. Amory, id., 187, the court held that “ A state court is not bound to surrender its jurisdiction upon a petition for removal until at least a petition is filed which upon its face shows the right of the petition to the transfer. It was not error for the court to retain these causes.”

Thus we have the direct authority of the highest tribunal which can pass upon the question, to the effect that the state court is not powerless to examine into the grounds of removal, so far at least as to pass upon their sufficiency as they appear upon the face of the petition itself.

But it may be said that, in the two cases cited, the petition itself did not sufficiently state the citizenship of one of the parties. This may be true, but t(ie cases establish the principle that the state court is not deprived of the exercise of all judgment in the matter, and forced to give up its jurisdiction for the sole reason that a petition for a removal is filed.

It is to be remarked of these cases, also, that they were brought up by writ of error to the supreme court from the state court direct, and not from the United States circuit court to revise decisions upon motions to remand.

This furnishes a conclusive answer to the position taken by appellant, and sustained by decisions of some of the circuit courts of the United States, to the effect that, whilst the sufficiency of the application may be questioned, it can only be done in the United States court to which the cause is removed upon a motion to remand or upon the trial of the cause therein.

There is such conflict of authority in the circuit courts upon this and all other points raised on the present application for removal that it is hardly worth while to discuss or review the eases. It is worthy of remark, however, that in our own circuit Mr. Justice Bradley, of the United States supreme court, held in the case of Wells et al., ex parte, 3 Woods, 128, that when a petition is presented to a state court under section 641, Revised Statutes, for the removal of a prosecution pending in that court to the federal court, the state court has a right to examine its sufficiency. His language is: “ The state court surely is not bound to shut its eyes and yield to every application that comes to it; though removal (when authorized) is a matter of right and not of favor, yet the court must have the right to see whether the application to remove comes within the meaning of the law.”

We think that in view of the language of the statute on the subject of removals and of the decisions of the United States supreme court, there can be no doubt of the power of the state court to pass on the sufficiency of the petition for the removal of this cause.

The remaining question is: Did the court below, in passing upon this petition, correctly hold that it was insufficient and refuse to remove the cause? The two objections raised to the petition below were that the company was not a federal corporation, and that the appellant’s defense under a law of the United States was not set forth. In the view we take of the case, it will not be necessary to consider the first of these objections. Neither will we notice the defect in the petition caused by a failure of appellant to verify it by oath as to the nature of his defense. The statute in terms requires such an affidavit, but the counsel for plaintiff below did not object on that ground nor urge the objection in this court.

As to how far the applicant is required to set forth in his petition the defense which he claims to have under a law of the United States, and how far the state court may go in inquiring into the nature of that defense, there is a conflict in the decisions of the United States circuit courts.

In the New York and Iowa circuits, and perhaps others, it has been held that it was sufficient to state that the corporation had a defense under its charter. In the ninth circuit it has been held that the petition should set forth the defense, or that it should otherwise appear from the record, so that the court could see whether or not such defense existed. No decision upon the exact point under section 640 of the Revised Statutes of the United States has been made by the United States, so that we are lefü to draw our conclusions from the reasoning on each side by the lower courts, and from decisions of the supreme court of the Union in analogous cases.

The circuit courts which have denied the right of the state courts to go further than to inquire into what is disclosed upon the face of the petition, or to hold that it is bad for not setting forth the nature of the defense under a United States law, generally base their opinions upon the want of any authority in the state court to pass upon the sufficiency of the petition in any respect, or upon the ground that the applications upon which they have passed followed the general language of the statute; or that upon a mere motion or objection to an application, the merits of the cause could not'be examined into. The first of these positions we have already disposed of. The last is not tenable because the supreme court has in effect passed upon it, indorsing the action of circuit courts in remanding causes, when they have done so upon mere motion based on the insufficiency of the petition. As to the other ground, it must proceed upon the idea that the petition is not a pleading, and therefore not subject to the rules of pleading; one of which is that it must set forth clearly the grounds on which it is based, leaving nothing to inference, and not stating mere conclusions of law.

That such petition is a pleading, and governed in a great measure by the rules of pleading, is thoroughly established by the decision of the United States supreme court in Gold Washing & Water Co. v: ICeyes, 96 U. S., 199. That cause was removed under that part of the act of 1875 which provides for the removal of suits arising under the constitution and laws of the United States. The application stated that “ the action arises under and that its determination will necessarily involve and require the construction of the laws of the United States,” etc. Chief Justice Marshall had held in Cohens «.Virginia, 6 Wheat., 379, that a case may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends upon the construction of either. So the petition may be said to have come within the letter and spirit of the act, and that no objection could be made excepting as to the general nature of its allegation, or its failure to show how the construction of such law was involved. The supreme court held that as neither the plaintiff claimed a right under the United States law, nor defendant set up a defense under it, the court would have to look to the facts set forth in the petition alone to judge of the correctness of the removal. It held that the petition performed the office of a pleading. Upon its statements, in connection with the other parts of the record, the courts must act in declaring the law upon the question. “ It should therefore set forth the essential facts, not otherwise appearing in the cause, which the law has made conditions precedent to the change of jurisdiction. If it fails in this, it is defective in substance, and must be treated accordingly. . . . It is the office of pleadings to state facts, not conclusions of law. It is the duty of the courts to declare the conclusions, and of the partes to state the premises.”

The court goes on to say: They (the defendants) state no facts to show the right they claim, or to enable the court to see whether it necessarily depends upon the construction of the statutes. Certainly an answer containing only the statements of the petition, would not be sufficient for the presentation of a defense under the provisions of the statutes relied on. ... In pleading the statute, the facts must be stated which call it into operation. The averment that it is in operation is not enough; for that is the precise question the court is called upon to determine.” The court concludes the subject by saying that “ if these facts,” i. e., the facts from which the conclusion stated in the petition is derived, “ sufficiently appear in the pleadings, the petition for removal need not restate them; but if they do not, the omission must be supplied in some form, either by the petition or otherwise.” ■

It is needless to add arguments to these so well stated in the above opinion. Although upon a different statute, the reasoning applies with equal force to the present case. ¡Neither the plaintiff’s nor defendants’ pleadings disclosed the fact that the appellant could have had any defense under its corporate acts. We must resort, therefore, to the application alone. It stated the conclusion of law that the appellant had a defense under its charter — a law of the United States,— without showing from what facts it drew that conclusion. Looking to that charter, vv e see no defense to the present case which could possibly arise under it. The application considered, as a pleading was defective in stating a conclusion instead of stating the premises so that the court might draw its own conclusions. And the whole record, taken together, shows that the conclusion was improperly drawn from the premises by the applicant.

This case strongly illustrates the incorrectness of the ruling which forbids the state court from determining the question of the right to a removal, and leaves it to be decided by the United States circuit court upon a trial of the merits of the cause. Fisk v. P. R. R. Co., 6 Blatch., 362. The cause was tried, below upon every question of .law and fact which the counsel for either party wished to present, yet neither in the pleadings, the evidence received or offered, nor in any other portion of the proceedings, was there developed any defense under the laws of congress granting a charter to the appellant. The defenses relied on were such as might have been urged by any corporation or private person acting as a carrier of passengers under the same state of facts. If the cause had been removed to the circuit court, as requested, it would have been tried in the same manner, under the same pleadings, and with the same evidence. There was no defense that the appellant could have interposed there that was not available in the state court. It follows, then, under the rulings above alluded to, that as no such defense as was stated in the application for removal would have been developed, the cause would have been remanded to the state court. Thus all the trouble, expense and delay incident to a change of jurisdiction would have been incurred, and the cause reached the same point where it was when the removal was applied for. It certainly could not have been the intention of the law to bring about such a disastrous consequence to suitors in the state courts.

The object of the statute of removal doubtless was to have the United States laws construed by the courts of the general government, and thereby produce not only uniformity of decision, but place the interpretation of such acts where it justly belongs. It certainly was not intended that, under the pretext of "having a defense by virtue of such law, a corporation could carry its causes from the state to the federal courts, and there have them tried, when- no such statute entered into the case.

It is urged that a corporation chartered by act of the general government has in every case a defense under the statute incorporating it. If so, the fact that it was thus chartered is all that is necessary to be known to the court in order to entitle it to removal. Why, then, did the statute require the superfluous statement of the additional fact that the corporation had a defense under a United States law? And why did it require such fact to be sworn to, if the court was bound judicially to know it? These considerations, together with the authorities cited, lead us to the conclusion that the mere statement in an application for removal that the corporation chartered by United States law has a defense under its act of incorporation is insufficient, when neither the said act, nor any of the papers or proceedings in the cause show that siich defense exists or can possibly arise upon the trial, and is not sufficient to entitle the applicant to a removal. The court did not err in refusing the motion to remove the cause to the federal court.

This cause and that in 96 U. S., above cited, differ from those known as the “Removal Causes,” in 100 U. S. There the petition stated a fact, viz., the citizenship of the parties, and not an inference of law; and its allegations in this respect were fully borne out by the pleadings filed in the cause.

As to the other assignments of error they may be classified as follows: The objection to overruling the motion for a continuance; objections to the giving and refusal of charges; to the admission or exclusion of evidence; and lastly, to the sufficiency of the evidence to warrant the verdict.

It has been frequently held by this court that the action of a court in refusing a continuance will not be revised unless a bill of exceptions to the ruling has been reserved. Morris v. Files, 40 Tex. 374; Davis v. State, 40 Tex., 478; Jones v. State, id., 188. There was none reserved by the appellant to this action of the court below. It is also universally held that without a statement of facts or bill of exceptions this court will not consider the action of the court below in receiving or rejecting evidence, nor will it pass upon the correctness of the charges given or refused. Tucker v. Willis, 24 Tex., 247; Garner v. Cutler, 28 Tex., 175; H. & T. C. R. R. Co. v. Knapp, 51 Tex., 569; Barrett v. State, 25 Tex., 605; Cannovan v. Thompson, 12 Tex., 247; Smithy v. Tucker, 25 Tex., 594; Frost v. Frost, 45 Tex., 325; Keef v. State, 44 Tex., 582. An exception to this doctrine is where the charge given, taken in connection with the pleadings and verdict, is so apparently erroneous as to leave no doubt but that the finding of the juy must have been controlled by the improper instructions. McGaughey v. Bandy, 27 Tex., 535. This court has also decided that it will not take notice of a bill of exceptions filed after the adjournment of the term of the court at which the cause to which it pertains was tried; and that they will not consider a statement of facts filed after such adjournment, if an order has not been made and entered of record during the term allowing such, statement to be made up, signed and filed within ten days after the adjournment. Ross v. McGowan, and McGuire v. Newbill, 58 Tex., .314; Truitt v. Blundell, Tex. Law Eeporter, April, 1883, p. 942. The term of court at which this cause was tried adjourned July 2, *1881, and the bill of exceptions and statement of facts were filed on the 11th of that month, without any previous order .permitting the statement of facts to be filed after adjournment. Such order would have been unavailing as to the bill of exceptions. We cannot, therefore, consider these papers, nor revise the rulings upon the evidence, nor determine whether the latter was sufficient to warrant the verdict. The charges are not glaringly erroneous, considered in reference to the pleading, but on the contrary seem to be fair and just, and to announce correct principles of law as applied to them. Where there is no statement of facts nor bill of exceptions, this court will presume that everything necessary and proper to be proved under the pleadings of the prevailing party in order to warrant the verdict was proved on tiie trial. Anding v. Perkins, 29 Tex., 353; Henderson v. Trimble, 8 Tex., 174; Johnson v. Blount, 48 Tex., 38; Bond v. Mallow, 17 Tex., 636.

The allegations of the pleadings in the cause, if proven, fully authorized the verdict and we cannot disturb it.

The objections to the action of the court on the motion to have the appellee examined by physicians cannot be considered for want of a bill of exceptions. As to its ruling on the plea in abatement, it is sufficient to say that the plea came too late, if the suit in the United States court was commenced before appellant filed its pleas in this cause to the merits; and if afterwards, the grounds set forth in the plea were not sufficient to abate this action.

All points taken by appellant under his fifth or seventh assignment of error might have been disposed of on the ground that these assignments are, under our rules, too general to entitle them to consideration; but they are so obviously defective, for the reasons above assigned, that we have on that account declined to consider them.

There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered May 1, 1883.]  