after stating the case as above, delivered the opinion of the court.

It is assigned as error, among other assignments, that the Circuit Court overruled the motion of the plaintiff in error to remand the cause to the state court. In Alabama Great Southern Railway Co. v. Thompson, Admr. (Jan. 3, 1906) 200 U. S. 206 , 26 Sup. Ct. 161, 50 L. Ed. 441 , the Supreme Court reviewed its former decisions, expressed the purport of their meaning, and finally determined the doctrine that the case made in the complaint against defendants sued jointly is, in the absence of a showing of fraudulent misjoinder, determinative of the right of removal. The court first reviewed Chesapeake & Ohio R. R. Co. v. Dixon, 179 U. S. 131 , 21 Sup. Ct. 67, 45 L. Ed. 121 ; and, after quoting therefrom, said:

From that decision the court quoted with approval the following:

And quoting the language in the opinion oí the court in Louisville & Nashville Railroad Company v. Ide, 114 U. S. 52 , 5 Sup. Ct. 735, 29 L. Ed. 63 , in which the Chief Justice had said, “A defendant has no right to say that an action shall be several which a plaintiff elects to make joint,” the court proceeded to remark:

Under the decisions of the Supreme Court of the state of Washington, a servant may be joined with the master in an action to recover damages for personal injuries alleged to have resulted from their negligence, whether the negligence of the servant consists in nonfeasance or misfeasance. Lough v. John Davis Co., 30 Wash. 204 , 70 Pac. 491 , 59 L. R. A. 802, 94 Am. St. Rep. 848 : Howe v. Northern Pacific Ry., 30 Wash. 569 , 70 Pac. 1100 , 60 L. R. A. 949. The action in the present case, therefore, was one which could he brought and enforced in the courts of that state. That a federal court in. the same jurisdiction might rule differently as to the liability of the servant, where his negligence consisted in nonfeasance, is no ground for removal. In the Alabama Great Southern Railway Company Case the court said:

It remains to be considered whether the cause was removable upon the allegations of the petition of the railway' company in which it was alleged that McDonald, its codefendant, was not a proper party defendant in said action, h:ul no interest in said suit, and, if liable at *86 all, was separately liable, and that he was made a party defendant “for the sole and only purpose of preventing a removal of said action by your petitioner.” In the Dixon Case the court held that, if the liability of the defendants as set forth in the complaint was joint and the cause of action entire, then the controversy was not separable as a matter of law, and that the plaintiff’s purpose in joining certain defendants was immaterial. The court said:

In Louisville, etc., R. R. Co. v. Wangelin, 132 U. S. 599 -601, 10 Sup. Ct. 203, 204, 33 L. Ed. 473 , the court said:

In Plymouth Min. Co. v. Amador Canal Co., 118 U. S. 264 -270, 6 Sup. Ct. 1034, 1038, 30 L. Ed. 232 , the court said:

In the case at bar there is no allegation that McDonald was wrongfully or fraudulently made a party defendant. The sole allegation is that he was made defendant for the purpose of preventing the removal of the action. This averment presented no question for the decision of the court. The motive of the plaintiff in joining defendants was immaterial, so long as he was acting within his right. No evidence was taken upon that averment of the petition, nor did the court pass upon the question thus attempted to be presented. The motion to remand was denied upon the ground that no cause of action against McDonald was stated in the complaint.

It is contended" that the plaintiff in error cannot be heard to insist that the cause was not removable for the reason that after the court had overruled his motion to remand and sustained the demurrer of McDonald, he voluntarily amended his complaint and made the defendant in error the sole defendant, thereby submitting to the jurisdiction of the Circuit Court. The sole question however, is whether the case was one properly removable from the state court as it stood in that court at the time when the petition was filed. That question is to be determined by the condition of the pleadings and the record at the time of the application for removal and not by the allegations of the petition or the subsequent proceedings which may be had in the Circuit Court. Barney v. Latham, 103 U. S. 205 , 26 L. Ed. 514 ; Wilson v. Oswego Tp., 151 U. S. 56, 66 , 14 Sup. Ct. 259, 38 L. Ed. 70 . If the petition had alleged that McDonald was fraudulenty or wrong *87 fully made a defendant for the purpose of preventing a removal, and the plaintiff had thereafter voluntarily dismissed as to him, his act might have been construed to be an admission of the truth of that allegation. But that is not what was done. After the removal, and after the court had denied the motion to remand and had sustained the demurrer of McDonald to the complaint, the plaintiff was compelled cither to submit to a dismissal of his action or amend his complaint in accordance with the ruling of the court. He could not, before final judgment, review in an appellate court the action of the trial court in overruling his motion to remand. Bender v. Pennsylvania Co., 148 U. S. 502 , 13 Sup. Ct. 640, 37 L. Ed. 537 . Nor could he obtain mandamus to compel a remand. Ex parte Hoard, 105 U. S. 578 , 26 L. Ed. 1176 . By amending his complaint as he did, and submitting to trial, he did not give the court jurisdiction.

The judgment is reversed, and the cause is remanded to the Circuit Court, with instructions to remand the same to the state court, whence it was removed.