Central Ohio R. v. Mahoney, 114 F. 732

Central Ohio R. v. Mahoney

114 F. 732 | 6th Cir. | 1902

SEVERENS, Circuit Judge,

having stated the proceedings in the case as above, delivered the opinion of the court.

When this case was reached for hearing at a former term, the question of jurisdiction was brought to the attention of the court, arid a grave doubt was expressed whether the case was properly removed from the state court; but the case was permitted to be argued on the merits, and subsequently the following question was certified to the supreme court of the United States:

“Is a suit removable from a state court to a United States court upon the petition of tlie receivers alone, when the action is against receivers appointed by a United States court, and also against a corporation created under the laws of the state of which the plaintiff is a citizen, when the action is a single action against both defendants for a joint tort?”

The question has been answered in the negative, and that answer practically determines the course which we should take. For the statute upon which the action is founded, in creating the liability, declares that it shall be joint, and that the lessor and lessee may be jointly sued; and the plaintiff, in his petition, pursues the defendants upon their alleged joint liability.

Only one further question requires consideration. It appears from the preceding statement' of the proceedings in the case that there had been a return by the sheriff that the Central Ohio Railroad Company was not found at the time when the petition for removal was filed. But this did not discharge that defendant from the case. The plaintiff might still take steps for bringing the railroad company in, by taking out an alias summons. Moreover, the receivers did not pray for the removal upon the ground that the suit had become one against them alone, but claimed the right to remove upon the ground that the *734other defendant had “no interest or liability jointly with the said receivers.” The Central Ohio Railroad Company appeared in the court below after the removal, and defended the suit upon the footing that it had been removed as a joint action, and a joint judgment was rendered against the railroad company and the receivers. We are therefore of the opinion that the circumstance that there had been a return of non est inventus as to the railroad company when the petition for removal was filed was unimportant. As the case made by the plaintiff’s petition did not present a separable controversy, it could not be removed by the receivers alone. We cannot for the present purpose consider the question of the validity of the defense made by the railroad company, since the right to remove is determined by the case made by the plaintiff’s petition. Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 14 Sup. Ct. 654, 38 L. Ed. 511.

The judgment must be reversed, and the cause remanded, with a direction to remand it to the state court from which it was removed. The plaintiffs in error (the receivers, who wrongfully removed the case from the state court) will pay the costs of the court below and of this court.