131 Ky. 142 | Ky. Ct. App. | 1908
Revers-
ing.
Joel H. Ward brought this suit against the Pullman Company, the Cincinnati, New Orleans & Texas Pacific Railway Company, Henry Drayman, and Mike Glenn. The Pullman Company is.a corporation under the laws of the State of Illinois. The railroad company is a corporation under the laws of the State of Ohio. Henry Drayman and Mike Glenn are two employes of the railroad company, and citizens of Kentucky. The Pullman Company and the railroad company filed their petition asking that the case be removed to the circuit court of the United States. The court ordered the removal, and the plaintiff appeals.
It is insisted for the appellees that the circuit court ruled correctly: First, because there was a fraudulent joinder of the two resident defendants, and that this question is cognizable only in the United States court; second, because no cause of action is stated against the resident defendants. The petition charged, in substance, these facts: Henry Drayman and Mike Glenn were oar inspectors in the service of the railroad company. It was their duty as such severally to examine and inspect freight cars arriving at and departing from the yards of the defendant at Ludlow, Ky., for the purpose of discovering, reporting, and causing to be repaired any defect in any car so that such oar and its appliances and attachments could be made safe for the trainmen in the employ of the railroad company to operate. On April 27, 1907, there was in the yard for inspection and for transportation to another point a certain gondola car equipped with the usual hand brakes, consisting of an upright iron
We will take up the second question first.. Does the petition state a cause of action-against the resident
The remaining question is: Was the question of fraudulent joinder only cognizable in the circuit court of the United States? In I. C. R. R. Co. v. Coley, 121 Ky. 394, 89 S. W. 234, 237, 28 Ky. Law Rep. 336, 1 L. R. A. (N. S.) 370, we said: “By the act of Congress (Act March 3, 1875, c. 137, section 2, 18 Stat, 470 [U. S. Comp. St. 1901, p. 509]), a case may only be removed to the Federal court where the defendant or defendants therein are non-residents of the State. Where there is a joint controversy, and one of the defendants is a resident of the State, the other defendant can not remove the case to- the Federal court. It is earnestly argued that if all the plaintiff has-to do Is to join with the defendant a third person who is a resident of the State, and that this will in all cases defeat the right of removal, then no cases may be removed, and the purpose of the act may be defeated entirely. On the other hand, if a non-resident defendant may simply plead to the merits of the case in the petition for removal, and then take the case to the Federal court for the trial of the issue thus tendered, all cases may be removed to the Federal court, notwithstandino:
It is provided by the act of Congress (Act March 3, 1875, c. 137, section 2, 18 Stat. 470 [U. S. Comp. St. 1901, p. 509]) that suits of a civil nature, which by the act may be brought in the circuit court of the United Statutes, may be removed to that court from the State
We have steadily held that, if at any time it becomes apparent to the court that the resident defendant was joined without reasonable grounds therefor, the court should set aside the order refusing to remove the case, and enter an order removing it to the circuit court of the United States. The court may do this at
Judgment reversed and cause remanded, with directions to the circuit court to set aside the order of removal, and for further proceedings consistent herewith.