76 F.2d 470 | 5th Cir. | 1935
The suit, of which this controversy is a part, has, in its progress into and out of the federal court, presented a series of anomalous situations. First. Its removal into the federal court upon the ground of a separable controversy on the petition of the United States Fidelity & Guaranty Company, defendant in what is called the city’s cross-action. The anomaly here is in the claim that this so-called cross-action, ancillary and incident to and any judgment on it dependent on and following the judgment in the main suit, presents a separable controversy. Second. The action of the trial court in embodying in a single decree three orders, which, though apparently consistent on their face, produced inconsistent results. These orders were: (a) An order overruling plaintiff’s motion to remand on the ground that the city’s cross-action against the surety company presented a separable controversy, and the suit was not remandable; (b) an order dismissing the city’s cross-complaint against the surety company on the plaintiff’s motion of misjoinder ; and (c) an order remanding the cause upon the ground that “upon dismissal as above ordered, there is no diversity of citizenship in the cause of the plaintiffs against the original defendants.” Third. The ex parte character of the appearances. On the city’s appeal from the order dismissing its cross-action, no brief was filed, no appearance entered by any of the other parties. The surety company, not the city, however, filed a motion for rehearing, complaining of our action in dismissing the appeal, while the city, no one appearing for the respondent, applied for certiorari. When the case was first before us, we thought
As we understand the opinion of the Supreme Court, the decree as a whole, and the-
We think it plain that in first overruling the motion to remand, because of the presence of the surety company, next dismissing it from the suit, and then remanding the cause, the District Judge fell into the error of trying to reconcile the conflicting claims of the surety company, that its vouching in made the suit removable, and of plaintiff, that the surety’s joinder could not be permitted, because it prejudiced his suit. Urged by the surety that a defendant in a cross-action, where, as here, there is the required diversity, has a right to remove,
He erred in dismissing the surety from the cause, for the claim the city made against it was so joined to, so dependent on, and so completely determined by the evidence in and the result of that suit, as to bring it strictly within the joinder rule in Texas. He erred, too, in the first order refusing to remand.
Whether a true cross-bill against a single defendant not a citizen of the same state with cross-plaintiff, and not a party to or connected with the main suit, would be removable at all, either as a separable controversy, taking the whole suit into the federal court, or as a separate one, taking only the cross-action,
The order appealed from is reversed.
City of Waco v. U. S. F. & G. Co. (C. C. A.) 67 F.(2d) 785.
Tillman v. Russo Asiatic Bank (C. C. A.) 51 F.(2d) 1023, 80 A. L. R. 1368.
Floody v. Chicago, St. Paul, M. & O. R. Co., 104 Minn. 132, 116 N. W. 111.
City of Waco v. U. S. F. & G. Co., 293 U. S. 140, 55 S. Ct. 6, 79 L. Ed. —.
Habermel v. Mong (C. C. A.) 31 F.(2d) 822, 67 A. L. R. 216.
National Surety Co. v. Atascosa Ice, Light & Water Co. (Tex. Com. App.) 273 S. W. 821; Labor Bank & Trust Co. v. Adams (Tex. Civ. App.) 23 S.W.(2d) 814.
U. S. F. & G. Co. v. Fossati, 97 Tex. 497, 80 S. W. 74; cf. G., H. & S. A. Ry. v. Hall (C. C. A.) 70 F.(2d) 608.
Habermel’s Case, note 5, supra; G., H. & S. A. Ry. v. Hall, note 7, supra.