120 Ky. 15 | Ky. Ct. App. | 1905
Opinion by
Eeversing.
The appellant, Sallie Al. Eutherford, filed her petition in the Graves Circuit Court against the appellee, Illinois Central Eailroad Company, and George F. Mullinix, Tom Hudson, Tom Caulder and C. H. Hendrix, in which she alleged, in substance, that on or about the 15th day of July, 1904, she bought a ticket and took passage on one of appellee ’s trains at Fulton, Ky., for her home, at Mayfield, Ky.; that she was a passenger upon this train, and was entitled to he con
The appellee contends that the action of the lower court was correct, for the reason that it alleged in its petition for removal that appellant’s cause of action stated in her petition was a separable one. This allegation amounted to nothing more than a conclusion of the pleader. There is not a single fact stated in the petition for removal from which the court might determine as to whether or not the cause of action was
The appellee also contends that the removal of the cause by the lower court was correct for the reason that it denied in its petition for removal the negligence of its co-defendants as charged in her petition, and that it also alleged that her purpose in joining its agents and servants as defendants with it was for the fraudulent and wrongful purpose of defeating the jurisdiction of the United States Circuit Court. These allegations are likewise mere conclusions of the pleader, and do not contain a single jurisdictional fact. As well might the appellant, on the other hand, say that these allegations and conclusions were stated for the sole purpose of ousting the State courts of jurisdiction. In the case of I. C. R. Co. v. Jones’ Adm’r, 118 Ky., 26 Ky. Law Rep., 31, 80 S. W., 484, in
Appellee contends that by reason of its denial of the negligence of its co-defendants, its employes, it was the sole and real defendant, and that its co-defendants were improperly made parties thereto. We are unable to accept this. The averments in a petition for a removal of a cause of action from a State to a Federal court must he restricted to matters of fact touching the jurisdiction of the court, and all allegations concerning the merits of the case are superfluous and immaterial. The merits of the case are exclusively within the province of the jury trying the case in the court having jurisdiction thereof. ,(See L. & N. E. Co. v. Wanglin, 132 U. S., 599, 10 Sup.
We are of tbe opinion that there are not sufficient facts alleged in the petition for removal, or appearing in the record, which would deprive the State court of jurisdiction to try this case. Wherefore the judgment is reversed, and the cause remanded for further proceedings consistent herewith.