delivered the opinion of the court.
This was an action by an employee against his employer and a coemployee to recover for injuries sustained by the plaintiff by reason, as was alleged, of his conforming to an order or direction negligently given to him by the co-employee and to which he was bound to conform. The injuries were sustained in Alabama and the action was brought in a court of that State. The employer’s liability was based on an Alabama statute, Ala. Code, 1907, § 3910, cl. 3, and that of the coemployee on the common law. The complaint was in a single count and treated the defendants as jointly liable.
In due time the employer presented to the state court a petition and bond for the removal of the cause to the District Court of the United States, and the removal was ordered and completed. The petition was properly veri
Shortly after the removal the plaintiff filed in the District Court a motion to remand the cause to the state court: This motion challenged the jurisdiction of the District Court on the grounds that one of the defendants, the coemployee, was a- citizen of the same State as the plain
To obtain a review of the ruling on the jurisdictional question presented by the motion to remand the plaintiff sought and obtained this direct writ of error; and in that' connection- the District Court certified that the jurisdictional question presented to and decided by it was whether in the circumstances already stated it had jurisdiction to retain the cause and proceed to a determination thereof in regular course, or was required to remand the same to the state court.
Our power, on this direct writ, to review the ruling on the question indicated, although challenged, is altogether plain.
Section 238 of the Judicial Code provides for a review by us, on a direct appeal or writ of error, of the decision of a District Court “ in any case in which the jurisdiction of the court is in issue,” and then adds, “ in which case the
Whether a District Court into which a case has been removed from a state court may retain the same and. proceed to its adjudication or must remand it to the court whence it came is a jurisdictional'question the decision of which, where the jurisdiction is sustained,
1
may be reviewed under that section.
Powers
v.
Chesapeake & Ohio Ry. Co.,
Of course, the review can be had only after a final judgment. Mc
Lish
v.
Roff,
The jurisdictional question is all that is before us. The propriety of the ruling respecting the costs of the prior action is challenged in the assignments of error but cannot be considered. The plaintiff was at liberty to take the whole case to the Circuit Court of Appeals or to bring it here on the question of jurisdiction alone. He took the latter course and by doing so waived all right to a review of the ruling on the other matter.
McLish
v.
Roff, supra;
A civil case, at law or in equity, presenting a controversy between citizens of different States and involving the requisite jurisdictional amount, is one which may be removed from a state court into the District Court of the United States by the defendant, if not a resident of the State in which the case is brought, § 28 Jud. Code; and this right of'removal cannot be defeated by a fraudulent joinder of a resident defendant having no real connection with the controversy.
Wecker
v.
National Enameling & Stamping Co.,
Here but for the joinder of the ;coemployee the case plainly was one which the employer was entitled to have removed into the District Court on the ground of diverse citizenship; and, if the showing in the petition for removal be taken as true, it is apparent that the coemployee was joined as a defendant without any purpose to prosecute the action in good faith as against him and with the purpose of fraudulently defeating the employer’s right of removal. This is the rational conclusion from the facts appropriately stated; apart from the pleader’s deductions. The petition was properly verified and the plaintiff, although free to take issue with its statements, did not do so. He therefore was to be taken as assenting to their truth, relieving the employer from adducing evidence to sustain them, and merely challenging their sufficiency in point of law. We hold they were sufficient, in that they disclosed that the joinder was a sham and fraudulent and hence was not a legal obstacle to the removal or to the retention of the cause by the District Court.
The briefs disclose that the parties differ as to. whether the local law gives any color for treating the employer and the coemployee as jointly liable, — the asserted liability of one resting on a statute and that of the other on the common law. But we do not find it necessary to solve this question. As- the joinder was a sham and fraudulent— that is, without any reasonable basis in fact and without any purpose to prosecute the cause in- good faith against the coemployee — the result must be the same whether the
In his motion to remand the plaintiff asserted that the removal was obtained for purposes of delay. But this had no jurisdictional bearing, no attempt was made to prove it and it is not relied on here.
We think the.District Court rightfully sustained its jurisdiction under the removal.
Judgment affirmed.
Notes
If the cause be remanded the order is not open to review. Jud. Code, § 28;
Missouri Pacific Ry. Co.
v.
Fitzgerald,
And see
Dow
v.
Bradstreet Co.,