130 F. 395 | U.S. Circuit Court for the District of Western Kentucky | 1904
The defendant the Illinois Central Railroad Company, a citizen of Illinois, has removed this case from the state court, where it was commenced, into this court, upon the ground that its codeferidant, Joseph Warren, a citizen of Kentucky, and the engineer in charge of its train when plaintiff’s intestate was injured, was joined as a defendant for the sole purpose of preventing the removal of the action to this court. The plaintiff has moved the court to remand the case. Upon the issue thus raised we have heard the evidence, and have reached the conclusion that whether or not, under the Constitution and laws of Kentucky, there exists a technical right to sue the defendants jointly, yet that in point of fact the defendant Warren was joined for the sole purpose of preventing a removal to this court; and the court finds further from the evidence that the averments of fact on which the joint liability is asserted are so palpably untrue and unfounded as to make it improbable that the plaintiff could have asserted them in good faith. This brings the case within the opinions of the Circuit Court of Appeals for this circuit in the cases of Hukill v. Maysville, etc., R. R. Co. (C. C.) 72 Fed. 747, and Warax v. Cincinnati, etc., R. R. Co. (C. C.) 72 Fed. 637. It would, indeed, be discreditable to the judicial acumen if it could be deceived by a claim so palpably unfounded as that Warren was joined with any expectation of a recovery against him.
It is urged, as is usual in such cases, that in many opinions the Supreme Court has held that the motive of a plaintiff cannot be inquired into if a pleading shows a case apparently within his legal rights; but it will be remembered that each of those decisions plainly recognized an exception to the rule, namely, cases where it is alleged and proved that the joinder was made for the sole purpose of preventing a removal, thus attempting to defraud the jurisdiction of the court, and thereby prevent a removal, to which the citizen of another state would otherwise be clearly entitled. Kansas City Suburban Ry. Co. v. Herman, 187 U. S. 70, 23 Sup. Ct. 24, 47 L. Ed. 76; C. & O. Ry. Co. v. Dixon, 179 U. S. 135, 138, 21 Sup. Ct. 67, 45 L. Ed. 121; L. & N. R. R. v. Wangelin, 132 U. S. 601, 10 Sup. Ct. 203, 33 L. Ed. 473; Plymouth,
It follows that the motion to remand this action to the state court must be, and it is accordingly, overruled.
