65 F. 142 | U.S. Circuit Court for the District of Western Missouri | 1895
This suit was instituted in the state circuit court of Caldwell county by the plaintiff, a citizen of said county, against the defendant the Bradstreet Company, a citizen of another state, and the defendant Harry Eoloff, a citizen of said Caldwell county, state of Missouri. The defendant company in due time filed its application for a removal of the cause as to it into this jurisdiction. The application is predicated upon the diverse citizenship of said company, accompanied with the further alie
The joinder of an agent with his principal under such circumstances, should be narrowly scanned by the courts, where its effect is to deny to the nonresident defendant a right of trial in the federal court. It is permissible to. this court, in a contention like this, to entertain affidavits to get at the real state of the facts respecting the object of such joinder, to enable the court to see whether or not there be a joint cause of action against all the defendants, or whether or not it be one only by averment. Nelson v. Hennessey, 33 Fed. 113; Rivers v. Bradley, 53 Fed. 305; Fergason v. Railway Co., 63 Fed. 177; Dow v. Bradstreet Co., 46 Fed. 824. It is true, in this case, that the plaintiff and his attorneys make affidavit denying the fact that it was understood or discussed between lawyers and client that Roloff should be joined in the action for the purpose of defeating the removal of the' cause into this court by the company, and the plaintiff also states that he had no such purpose. But it is a noticeable fact that, while his attorneys state that the matter was not canvassed between them and their client, it is not stated that they did not canvass the matter among themselves as attorneys. Ofttimes actions speak louder than words. Immediately on filing the petition by the company asking for a removal of this cause, as to it, into the United States circuit court, the plaintiff sought to dismiss his action. Why did he do this, but for the fact that he was unwilling to litigate this controversy with the nonresident defendant on more common, neutral ground? And as proof that this was the real incentive to the action of the plaintiff in thus attempting to defeat the removal, one of the defendants’ attorneys makes affidavit that upon the attempted dismissal of the suit plaintiff’s attorneys said to him that they would now reinstitute the action in the state court for a sum less than the jurisdiction of the federal
Another fact is significant from the affidavits filed by the plaintiff in this case: That, although advised by the contention of the defendants that there was no community of action between the report of the defendant Roloff to the company and its subsequent publication, none of the affiants on the part of the plaintiff state or show that the defendant Roloff was instrumental in malting the alleged publication, or that he authorized the same to be published. As the publication is the gist of the libel, this statement was important under the issues joined on this motion. The failure of the plaintiff to support this averment in Ms petition, after accepting the gauge of battle thrown down by the challenge of the defendant in the affidavits filed herein, by his own or any other affidavit, is little less than an admission of the truth of defendant’s charge. If, as a matter of fact, the defendant Roloff, in connection with other servants, agents, and emplovés of the defendant company, made the libelous publication which is the gravamen of this action, the plaintiff can make that fact appear on the trial of this cause in this court; and when he does so this court will discontinue the case here, and remand the same to the state court on the ground that it was improvideutly removed. The motion to remand is denied.