242 F. 988 | W.D. Wash. | 1917
This action has been removed to this court from the state court on the petition of the defendant Guardian Casualty & Guaranty Company. Motion to remand is now made by the plaintiff.
This court, in German-American Mercantile Bank v. Gas Service Corporation of America et al., 228 Fed. 827, at page 828, said:
“It is also proper to unite in tlie same action causes arising out of the same transaction. Harding v. Ostrander Timber Co., 64 Wash. 224 [116 Pac. 635]. And by the same logic parties involved in the same transaction, as maker of a note and guaranty under a separate instrument, may be jointly sued. Bank of California v. Union Packing Co., 60 Wash. 456 [111 Pac. 573], There is in the complaint but a single cause of action. There is hut a single controversy, and that is the alleged indebtedness due the plaintiff. Each of the defendants may have a separate defense, hut that does not create separable controversies within the meaning of the Removal Act. Louisville & Nashville Ry. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63; Putnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. 746, 29 L. Ed. 65; Pirie et al. v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331; Starin v. New York, 115 U. S. 248, 6 Sup. Ct. 28, 29 L. Ed. 388.”
In this case there is but one cause of action. The cause is the failure to carry out the contract which was entered into by the Beer’s Building Company, and the completion of which was guaranteed by the Surety Company. Trinity Parish of Seattle v. Ætna Indemnity Co., 37 Wash. 515, 79 Pac. 1097. The transaction is one. The plaintiff, having elected to sue the parties liable jointly, is pursuing a right given it by law. The issue in a case of removal is what the plaintiff makes it in his complaint. Bradshaw v. Bowden (D. C.) 226 Fed. 323. The Beer’s Building Company, being a citizen of the state, may not deprive the plaintiff of its cause of action against it by the removal of the officers of the company from the state, and in such event, under the provisions of the laws of Washington (section 227, Rem. & Bal.
From an examination of the files in this case and the law governing the issue, I think the conclusion is inevitable that the cause must be remanded; and such is the order.