102 F. 775 | U.S. Circuit Court for the District of Kentucky | 1900
The plaintiff, a citizen of Kentucky, has, in this action, sued jointly the Southern Railroad Company of Ken tucky, a citizen of Kentucky, and S. M. Felton, the receiver of this court appointed in the suit of Samuel Thomas against the Cincinnati, New Orleans-& Texas Pacific Railway Company, of which latter suit this court had jurisdiction solely upon the ground of diverse citizenship. The defendants here are charged with having, by their joint and concurrent negligence, caused the death of plaintiff’s intestate in the yards at Lexington, Ky., used jointly by the defendants, and by an engine operated by, and in charge of, persons employed by them jointly. The receiver alone, a citizen of Ohio, removed the action to this court upon two grounds, viz.: First, that there is a separable controversy between him and plaintiff; and, second, upon the ground that as he is the court’s receiver, and sued as such,, it is a suit “arising under the constitution or laws of the United States.” The plaintiff has moved to remand the case to the slate court, and the very interesting questions arising on the motion, and growing out of the second ground for the removal, have received most careful consideration.
The first alleged ground of removal cannot be maintained, because there is no separable controversy. If the plaintiff and the receiver were the only parties to the action, the rating made in Tompkins v. MacLeod (C. C.) 96 Fed. 927, would again he applied, even if the receiver were not a citizen of Ohio, not now so much because of the decision of Judge Taft in the case of Gilmore v. Derrick (C. C.) 93 Fed. 525, as upon the grounds presently indicated. However, in the absence of any other ruling in this circuit, and of any express decision on the exact point by the supreme court, I then felt bound by what Judge Taft had said. It is not altogether inadmissible, however,
An examination of the two cases last cited, by the court will show that they do not in the slightest degree militate against what I have said, as in neither was there a receiver for a state corporation. Overlooking this fact, and the distinction which might thence arise, may have led to some uncertainty or misapprehension; and where, as in the case before us, the relief asked apparently depends upon principles of the general law, and not in any just sense upon the constitution or laws of the United States, it is quite difficult to see clearly how this suit is one which “arises” under the constitution or laws of the United States. If the receiver, actually operating the railroad long after his appointment, negligently kills a man, the cause of action for damages therefor seems to arise out of that negligence, and not, in
It seems to me, for the reasons presently to be stated, that the supreme court must be regarded as quite certain to hold that such cases arise under the constitution or laws of the United States only where the receiver is appointed under a statute of the United States, as in cases of national banks, or for corporations created by the laws of the United States, such as soldiers'" homes and Pacific Railroad Companies, and not where a federal court, merely in the exercise of its general jurisdiction, has appointed a receiver for a corporation not existing under federal law, or for a partnership composed of individuals who, under the fourteenth amendment of the constitution, are citizens of the United Stales, and who would seem, for that reason, to have as good basis for removing a cause as would a receiver made such by mere judicial appointment. Reasoning to support a claim to remove such a case would appear hut little less artificial than that ■which supports the doctrine now invoked. It may illustrate the proposition to note that in Society v. Ford, 114 U. S. 635, 5 Sup. Ct. 1104, 29 L. Ed. 261, it was held that the mere fact that a suit in a, state court is brought on a judgment recovered in a federal court does not entitle the defendant to remove, and the inquiry might he suggestive as to what would give more potency in this connection to an order of appointment of a receiver than to a judgment of the same court. Neither one is a “law” of the United States. In Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 7 Sup. Ct. 260, 30 L. Ed. 461, it was held that a suit cannot be said to be one arising under the constitution or laws of the United States until it has in some way been made to appear on the face of the record that some title, right, privilege, or immunity, on which the recovery depends, will be defeated by one construction of the constitution or a law of the United States, or sustained by an opposite construction. It may well he supposed that the ultimate result upon the question of whether receivers for a state corporation appointed by a federal court stand upon tbe same footing as receivers of a corporation created by an act of con
This state of the authorities leaves the question in much doubt, but if Judge Taft's views upon this phase of it, as expressed in Gilmore v. Herrick, are ultimately sustained by the supreme court, there is another question which, coupled with the uncertainty and possible weakness of the first proposition upon which the defendant relies, seems to me to be decisive against the jurisdiction of this court. It is true that Judge Taft in Landers v. Felton (C. C.) 73 Fed. 311, held ¡adversely to the views I am about to express, and I should not decline to follow him, but for the new developments to which I have alluded. Ordinarily, the right of removal cannot be maintained by one only of two tort feasors sued jointly. Under the rulings of the supreme court in a line of cases of which those of Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203, 33 L. Ed. 473, Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331, and Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, are types, there is not a separable controversy here, and that ground of removal relied upon cannot be maintained. In many decisions, of which those in the cases of Railroad Co. v. Mills, 113 U. S. 249, 5 Sup. Ct. 456, 28 L. Ed. 949, and the Removal Cases, 100 U. S. 457, 25 L. Ed. 593, are examples, all the defendants (there being no claim of collusive or fraudulent joinder) must’be arranged upon the one side of the 'controversy, and no one defendant can remove unless all can do so. It may be that the reason upon which these rulings were made applies to this case, and there would seem to be quite as good basis therefor, especially as the true ground for removing a cause by a federal receiver of an ordinary state corporation is the imputed diverse citizenship of the parties to the suit in which he was appointed, and the ancillary character of litigation with him. The statute does not expressly provide for the exact case before us; that is to say, for a case in which one defendant may insist that the suit is one which arises finder the constitution or laws of the United States, when the other defendant, sued in precisely the same way, cannot ■do so. This statement of the situation seems to reveal the absurd result that would follow a construction which would leave one defendant at liberty to say the case arose under the constitution or laws of the United States, when another defendant, jointly sued in
To sum up the whole matter: The real ground of support of the right of a federal court receiver of a mere state corporation, or of a partnership composed of citizens of the United States, to remove a case against him to this court now appears to he that such a suit, being ancillary to the one in which the receiver was appointed, is capable of being drawn to the jurisdiction of the latter by reason of the imputed diverse citizenship of the parties to it. The right of removal in such cases appears to rest upon those grounds, and not upon the proposition (which does not seem now to be certainly true) that such a suit against such a receiver is one “arising under the constitution or laws of the United States.” The right to remove in such case, therefore, ultimately rests alone upon the attributed, and not upon the actual, diverse citizenship of the parties. That being so, the unquestioned joinder in this case of a citizen of Kentucky and the receiver defeats the right to remove, as both defendants' cannot join in the petition to do so, as could those in a dual receivership, as in Tompkins v. MacLeod, where one receiver was actually, in his private capacity, a citizen of Kentucky. This is particularly so, inasmuch as this case is not expressly covered by the language of the removal act, as already indicated, even if as to one defendant, sued alone, it could properly be held to be a suit “arising under the constitution or laws of the United States.” In the absence of any claim that there was a collusive joinder of the defendants in this case, and in view of the great probability that the supreme court will hold that, even as to the receiver, this case is not one arising under the constitution or laws of the United States, and because it seems reasonably certain under the removal act that this inseparable controversy cannot be removed to this court by one only of the defendants, even upon the ground alleged, I think the case must be remanded; and it is so ordered.