24 Ga. App. 458 | Ga. Ct. App. | 1919
[After stating the foregoing facts.) There is but one question presented, to wit: the correctness of the ruling upon the petition for removal to the Federal court. Whether an action is joint' or several is a question for the State court to determine. Rountree v. Mt. Hood R. Co., 228 Fed. 1010; Alabama Great Southern Ry. Co. v. Thompson, 200 U. S. 206 (26 Sup. Ct. 161, 50 L. ed. 441, 4 Ann. Cas. 1147); Wecker v. National Enameling Co., 204 U. S. 176 (27 Sup. Ct. 184, 51 L. ed. 430, 9 Ann.
Applying the above-stated test to the declaration under consideration, we hold the action joint and not several, since the same acts of negligence are charged against both defendants. In other words, no act of negligence is charged against either of the defendants which is not charged against the other. The ease of Russell v. Champion Fibre Co., 214 Fed. 963 (131 C. C. A. 259), is substantially parallel to the case under review. The plaintiff had the right to join in the same suit the Postal Telegraph-Cable Company, the master, and Welch, the foreman of that company. As to the right to join causes of action against employer and
We come now to the question whether or not there was a fraudulent joinder of the defendant Welch. The allegations contained in the petition to remove and the amendment thereto amount to no more than a traverse of the charge of negligence set out in plaintiff’s declaration, and consequently are wholly insufficient to raise an issue of fraudulent joinder of Welch as a codefendant. See, in this connection, Chesapeake & Ohio Ry. Co. v. Dixon, 179 U. S. 131 (21 Sup. Ct. 67, 45 L. ed. 121); Chesapeake & Ohio R. Co. v. Cockrell, 232 U. S. 146, 154 (34 Sup. Ct. 278, 58 L. ed. 544); Chicago &c. R. Co. v. Dowell, 229 U. S. 102 (33 Sup. Ct. 684, 57 L. ed. 1090); Southern Ry. Co. v. Lloyd, 239 U S. 496 (36 Sup. Ct. 210, 60 L. ed. 402). In the Cockrell case, supra, it is said that it is not enough to assert that there was a fraudulent joinder of defendants but there must be “a statement of facts rightly engendering that conclusion,” and that “merely to traverse the allegations upon which the liability of the resident defendant is rested or to apply the epithet ‘fraudulent’ to the joinder will not suffice; the showing must he such as compels the conclusion that the joinder is without right and made in had faith." (Italics ours.) See also to the same effect the ruling made in Russell v. Champion Fibre Co., supra.
From what is said above it is clear that the plaintiff had the right to join the telegraph company and Welch as joint defendants in the same suit, and that a joint cause of action and not a separable controversy is set out in his declaration, and that the petition and the amendment thereto, seeking to remove the cause into the Federal court, failed to allege sufficient facts to establish a fraudulent joinder.
Judgment affirmed.