193 F. 252 | W.D. Ky. | 1912
The plaintiffs move to remand the action to the Carlisle circuit court. The facts are very simple. Turk was the owner of a certain warehouse at Bardwell, Carlisle county, Ky., in which grain and other things were stored. It is alleged that the defendant railroad company negligently set fire to the warehouse on January 17, 1911, whereby it and its contents were destroyed to the injury of the plaintiffs in the sum of $6,747.82. On January 13, 1911, Turk had taken out a policy of insurance on the warehouse and its contents for the sum of $5,000 in the Insurance Company of North America. After the fire an adjustment was made of the loss covered by the policy, and the insurance company paid Turk $4,602.82, the amount ascertained to be due, and the policy was then assigned to the insurance company that had issued it and had stipulated therein to pay the sum indicated. Both Turk and the insurance company are joined as plaintiffs in the action, and they pray for judgment against the defendant for $6,747.82, the damage alleged to have been sustained, of whicli $4,602.82 is to go to the insurance company, and the balance, $2,145, is to go to Turk. Turk is a citizen of Kentucky, the insurance company is a citizen of Pennsylvania, and the defendant railroad company is a citizen of Illinois, doing business in Kentucky, and operating its railroad in Carlisle county, and through the town of Bardwell; its track passing near the warehouse.
“Where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit should be brought only in the district of the residence of either the plaintiff or the defendant.”
This clause of the section has often been the subject of consideration by the courts. The definite result has been an interpretation of it which excludes the idea of mere jurisdiction as such, and limits it to venue, from which it is held to follow that only the right or personal privilege exists of claiming that the suit was brought in a wrong district. If neither party reside in that district, the venue may he objected to by the party sued; or if the suit he brought in a state court, the plaintiff, after removal, may object in the federal court. In short, both parties in such a case must consent to proceeding in the federal
By their motion to remand the plaintiffs have sufficiently manifested their objection to proceeding in this district and in this court, andl if nothing- further appeared their motion would be sustained. But as other material facts do appear, we are brought to the question which furnishes the real test of the right to remove. If the insurance company had not been joined as a plaintiff, then, as Turk is a citizen and also a resident of Kentucky, and as the defendant railroad company is a citizen of Illinois, of course, the provisions of the clause of section 1 of the judiciary act which we have copied would be met, and the right of the. defendant to remove the action would be entirely clear. Does the joinder of the insurance company, under the circumstances disclosed b)'1 the record, change that result?
It results that the motion to remand must he overruled.