The plaintiff in error brought suit against W. H. Tibbs in Whitfield Superior Court, and when the.case was called the plaintiff, by his counsel, informed the Court that he had an application in regular form for the removal of the case to the United States Court. The Court inquired if he had filed an affidavit of the payment of taxes, which was answered by plaintiff that he had not, but had filed the proper affidavit required by Act of Congress to transfer the case. Upon which the Court dismissed the case.

We think the Court erred in this decision. The institution of the suit constituted a case in the Court, to which a *295motion of transfer under the Act of Congress applied, and it was the duty of the Court to have heard that motion and decide it in precedence to the motion to dismiss, for reasons too obvious to invoke any discussion.

Judgment reversed.