168 F. 782 | U.S. Circuit Court for the District of Western Missouri | 1909
Plaintiff, a citizen and resident of the state of Illinois, brought in the state court of this state his action
That the plaintiff, a citizen of Illinois, might, had he so desired, have brought his action against the removing alien defendant alone in this court, does not admit of controversy. In re Hohorst, Petitioner, 150 U. S. 653, 14 Sup. Ct. 221, 37 L. Ed. 1211; Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 Sup. Ct. 526, 42 L. Ed. 964. It thus dearly appears this court in such case would have complete original jurisdiction, concurrent with that of the state court, of the subject-matter of such controversy.
But the question here presented is, can the removing defendant bring its controversy with the plaintiff to this court, to the exclusion of the jurisdiction obtained by the state court wherein defendant is proceeded against by plaintiff, not alone, but jointly with other defendants, some of which are citizens of states of this country other than that of which the plaintiff is a citizen, and other than that of this state, and some are alien defendants, to recover for a joint tort done him by defendants? As the cause of action stated by plaintiff in his petition filed in the state court makes the wrong done him a joint tort, committed by all the defendants acting conjointly, and seeks a recovery of damages for such joint wrong, it is clear there is not and cannot be a removal of the cause to this court on the ground of the existence oE a separable controversy between the plaintiff and the removing defendant, as the petition for removal would seem to allege.
It has been many times decided that the cause of action for removal purposes is precisely that which the petition of plaintiff makes it, and in this case the cause of action is thus made joint and not separable. Alabama Southern Ry. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441; Cincinnati & Texas Pacific Ry. v. Bohon, 200 U. S. 221, 26 Sup. Ct. 166, 50 L. Ed. 448.
Again, that a cause of action may be removed into a Circuit Court of the United States at all, it must be such as might have been originally brought by the plaintiff in such Circuit Court. Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182. While plaintiff might originally have brought this action against the alien defendants, jointly, in this court, had he so desired, and could
It is therefore clear the plaintiff, had he so desired, could not have originally brought this joint action against all the defendants in this court, and as the effect of the separate removal taken by defendant the National Assurance Company alone, if sustained, must result in bringing the entire joint controversy of plaintiff with all defendants before this court (Chicago, Rock Island & Pacific Railway Co. v. Martin, 178 U. S. 248, 20 Sup. Ct. 854, 44 L. Ed. 1055), when such joint controversy could not have been originally brought in this court, in my judgment, it follows, of necessity, the motion to remand must be sustained.
It is so ordered.