125 F. 155 | U.S. Circuit Court for the District of Montana | 1903
The questions presented for consideration in this case arise upon a motion to remand the same to the state court, from which it was removed into this court upon a petition, made under oath, alleging (i) that the plaintiff is a resident and citizen of the state of Washington, and that Charles Gibson, one of the defendants, is a resident and citizen of the state of Montana, and that the other defendant, the Northern Pacific Railway Company, is a corporation organized under the laws of the state of Wisconsin, and a citizen of said state; (2) that there is a separable controversy, presented in said suit between plaintiff and the defendant Northern Pacific Railway Company, which can be wholly determined between it and said plaintiff, and in which said defendant. Gibson is not in any manner interested. Upon this last ground the court is able to determine, from an inspection of the complaint, as to what it contains. Upon such examination, the court finds that this is a case where concurrent acts of negligence are charged against both defendants. Such an action presents no separable controversy. Cuddy v. Horn (Mich.) 10 N. W. 32, 41 Am. Rep. 178; Masterson v. N. Y. Central, etc., R. R., 84 N. Y. 247, 38 Am. Rep. 510; Hoye v. Great Northern Ry. Co. et al. (C. C.) 120 Fed. 712; Teal v. American Mining Co., et al. (Minn.) 87 N. W. 837; Moon v. N. P. R. R. Co., 46 Minn. 106, 48 N. W. 679, 24 Am. St. Rep. 194; Consolidated Ice Mach. Co. v. Keifer, 134 Ill. 481, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688; 2 Wood’s Railway Law, 1341.
As to the other questions, the complaint does not specify the citizenship of the plaintiff or the defendant Gibson. The petition for removal, however, does. Judge Dillon, in his work on Removal of Causes from State Courts to the Federal Courts, lays down the rule