12 F. Supp. 547 | S.D. Ohio | 1935
OPINION
The whole question depends upon whether or not the petition shows a separable controversy. Such is not shown in the instant ease. It may develop in the course of trial that there is no joint liability upon the part of the defendants, in which event plaintiff may be required to elect agairist which of the defendants he will proceed. French v Construction Co., 76 Oh St 509, 518, but upon this motion to remand, this court looks only to the allegations of the petition and the record at the time of the removal. American Bridge Co. v Hunt, 130 Fed. 302 (C.C.A. 6). Laden et v Meek et, 130 Fed. 877 (C.C.A. 6). Roberts v Shelby, etc., Co., 131 Fed. 729 (C.C.A. 6). C. & O. Ry. Co. v Dixon, 179 U. S., 131.
The motion is sustained and an order may be drawn remanding this cause to the Common Pleas Court of Hamilton County, Ohio, whence it came. On December 27, 1934, defendant, The Buick-Olds-Pontiac Sales Company, appearing specially for that purpose, filed a motion moving this court to set aside the service of summons herein on the ground that it is illegal and void.
In view of the ruling just made remanding this cause to the Common Pleas Court of Hamilton County, Ohio, it is not necessary or proper for this court to pass upon the motion just referred to, to quash service’ of summons, as this cause should not have been removed to this court in the first instance.
