130 F. 302 | 6th Cir. | 1904
after making the foregoing statement of the case, delivered the opinion of the court.
There is a preliminary question which must be decided before considering the errors assigned, and that is whether the Circuit Court rightfully obtained jurisdiction by the proceedings under which the cause was removed from the state court. The decision of this question cannot be escaped, for it is the duty of the court at any stage of the litigation to dismiss or remand any suit in which a defect of federal jurisdiction shall appear, without regard to whether the question is made by the parties or not. Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449, 453, 20 Sup. Ct. 690, 44 L. Ed. 842; Defiance Water Co. v. Defiance, 191 U. S. 184, 24 Sup. Ct. 63, 48 L. Ed. 140. The right of the corporation to remove the suit depends upon whether the record, at the time of the removal, disclosed a separate controversy. The plaintiff had elected to join the corporation with three individual defendants, and to sue the defendants thus joined as joint tort feasors, and, if he has stated on the face of his pleading a cause of action which is joint, he had a right to maintain his suit against
As to the defendants Finch and Haas, it is averred that they “were officers and agents of the defendant company in charge of and were assisting in and conducting the business of the defendant company, and had charge over the decedent, Plenry E. Baker, and all other employés in and about the work of the defendant company.” No other reference is made to these two defendants except as they are included along with the corporation in averments charging the “defendants” — meaning to include the corporation and Finch and Haas, but not Guthrie — with negligence in furnishing a defective crane and an incompetent man for the operation of the crane. The liability of
But it is insisted that it is a misconstruction of the petition to read it as charging any negligence whatever against the defendant Guthrie. It must be conceded that if, upon a fair and reasonable construction of the averments of the petition, no facts are averred which, as
The judgment will be reversed, and the court below directed to remand the suit to the state court. The plaintiff in error will pay all the costs incurred since the wrongful removal.