146 F. 972 | 4th Cir. | 1906
This action at law was instituted by Ernest Thomason, the defendant in error, who acted by and through his guardian, Garland A. Thomason, in the superior court of Buncombe county, N. C., against the Southern Railway Company, the plaintiff in error, the Western North Carolina Railroad Company, and Luther E. Long. On the 12th day of September, 1899, the said Ernest Thomason, then an infant about 12 years of age, was injured upon a turntable belonging to and used by the Southern Railway Company at Old Fort,
Afterwards this cause was, by' the order of the Circuit Court of the United States for the Western District of North Carolina, removed into said court, on consideration of the petition, affidavit, and bond filed therein by the Southern Railway Company; said order reciting that such petitioner could not, on account of prejudice and local influence, obtain justice in the superior court of North Carolina. After-wards, on Alay 8, 1903, the plaintiff below moved fhe said Circuit Court of the United States to remand this suit to the court from which it had been removed, which motion the court below denied, and the cause, issue having been joined, was tried to a jury, which found a verdict in favor of the plaintiff, on which judgment was, after the amount so found had been reduced by the court, rendered for the plaintiff. From this judgment,the defendant below sued out the writ of error now under consideration. The assignments of error are many. They raise questions of procedure of unusual interest, and involve the application of propositions of law of great importance. We are met, however, with a question of jurisdiction which must first be disposed of. That question is distinctly raised by the motion to remand, and were it not so presented it would nevertheless be our duty to consider it. Had the court below jurisdiction of this cause? Was it properly removed from the superior court of Buncombe county, N. C. ? Did the Circuit Court for 'the Western District of North Carolina err when it refused to remold this case ?
It is staled in the ’ petition on which the removal was ordered that the plaintiff is a citizen of the state of North Carolina, and that the defendant, the Southern Railway Company, is a citizen of the state of Virginia, and it appears that the other two defendants arc citizens of the state of North Carolina. The petition for and the order of removal are both based solely^ on the ground of “prejudice and local influence.” The case does not present a controversy separable in its character/and it is not claimed that the joinder of defendants was made for the purpose of defeating the jurisdiction of the United States Circuit Court, of preventing a- removal of the case to that court under the legislation applicable thereto. The question of:jurisdiction must be determined by the status of the case, as it existed at the■ time the order of removal was made. Pleas filed, amendments made, and orders entered subsequent, to the docketing Of- the case in the court below can have no bearing on this question.
“To hold otherwise brings the language of the clause into- conflict with the rule that a suit to be removable must be within the original jurisdiction of the Circuit Court, departs from the settled former construction, and ignores the main purpose of the act of 1887, which was to restrict the jurisdiction of the Circuit. Court. Hanrick v. Hanrick, 153 U. S. 192, 14 Sup. Ct. 835, 38 L. Ed. 685; Anderson v. Eowers (C. C.) 43 Fed. 321; Moon on the Kemoval of Causes, § 189 and notes. And there does not seem to be any escape from this conclusion in view of the provision of the first section of the act of 1887, that where the jurisdiction is founded solely on diversity of citizenship, suit can be bought only in the district of the plaintiff or the defendant.”
In the case we now consider, the suit was brought in the plaintiff’s state against the Western North Carolina Railroad Company and Euther F. Eong, shown by the complaint to be necessary parties, citizens of the state of North Carolina, and the Southern Railway Company, a citizen of the state of Virginia, also a necessary party. It could not have been brought in the Circuit Court of the United States for the Western District of North Carolina. The controversy is one between a citizen of that state and district and other citizens of that state and district in conjunction with a citizen of the state of Virginia, and consequently the circuit court of that state and district under the legislation referred to, did not have jurisdiction of it. The case was improvidently removed and should have been remanded. The following cases discuss and construe the jurisdictional questions by which we are governed in the disposition of this case: Railway Co. v. Swan, 111 U. S. 379, 4 Sup. Ct. 510, 28 L. Ed. 462; Plymouth Gold Mining Co. v. Amador & Sacramento Canal Co., 118
removal the state court having on cation of the Southern Railway Company, that company will be required to pay the costs incurred in this court and in the court below.
Judgment reversed and cause remanded to the Circuit Court, with a direction to remand to the state court. All costs to be paid by the plaintiff in error.