33 F. 113 | U.S. Circuit Court for the District of Minnesota | 1887
This is a motion to remand. The complaint charges the death of the plaintiff’s intestate through the negligence of the defendants, and seeks to recover therefor. There are two defendants, Hennessey and Johnson. Hennessey, by reason of difference of citizenship, would be entitled to a removal. Johnson, being a citizen of the same state with the plaintiff, would not. It is claimed that this is an action for a joint tort, and therefore, unless both defendants have a right of removal, this court cannot take jurisdiction, and the case must be remanded. This is undoubtedly true if (he complaint discloses a joint tort. But it is also true that, whore there has been a tort committed by one party, the plaintiff cannot join another and merely nominal party, as defendant, so as to prevent a removal to which the real defendant is entitled. Now, this complaint charges that the defendant Hennessey was the owner of a building; that it was unsafe, the. foundation insecure; that its condition was known to Hennessey; and that, by reason of its falling, plaintiff’s intestate was injured and killed. There thus appears a cause of action against this defendant, through whose negligence the injury was occasioned. Then, as to the defendant Johnson, it simply alleges that he was a tenant in occupation of the building. It nowhere appears that the building was safe and secure when Johnson leased it, and that, through his negligence, it became insecure and unsafe, and there is no allega tion that the tenant was under any contract or other obligation to repair the building or make it secure,—nothing but the simple fact that Johnson was the tenant and in occupation. Now, a tenant
Motion to remand overruled.
