122 F. 205 (5th Cir. 1903), 1,149., Dougherty v. Yazoo & M.V.R. Co.

Docket Nº:1,149.
Citation:122 F. 205
Party Name:DOUGHERTY v. YAZOO & M.V.R. CO. et al.
Case Date:March 31, 1903
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 205

122 F. 205 (5th Cir. 1903)

DOUGHERTY

v.

YAZOO & M.V.R. CO. et al.

No. 1,149.

United States Court of Appeals, Fifth Circuit.

March 31, 1903

L. W. Magruder and J. C. Bryson, for plaintiff in error.

Edward Mayes, J. B. Harris, and Thomas A. McWillie, for defendants in error.

Page 206

In Error to the Circuit Court of the United States for the Southern District of Mississippi.

This action was brought by John C. Dougherty, the plaintiff in error, in the state circuit court of Jefferson county, Miss., against the Yazoo & Mississippi Valley Railroad Company and the Pullman Palace Car Company, jointly, for personal injuries sustained by him by being thrown from a rapidly moving train of the defendant railroad company, through the alleged joint negligence of the defendants and their servants. In due time the Pullman Company presented its petition to the state court for removal of the suit to the United States Circuit Court, alleging that 'this is a suit wherein the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and in which there is a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid; that this is a suit in which there is a controversy which is wholly between citizens of different states, and which can be fully determined as between them, and petitioner is one of the defendants actually interested in said controversy. ' Thereupon the suit was removed to the Circuit Court. The plaintiff moved to remand on the grounds, first, that the suit was not removable to the Circuit Court; second, that this suit, embracing the same cause of action, was first instituted by the plaintiff against the defendants in the Circuit Court of the United States for the Eastern District of Louisiana, and was dismissed by that court for the want of jurisdiction, based upon citizenship, on the motion of the defendant Pullman Palace Car Company, on the . . . day of . . ., 1899. This motion, having been duly heard, was refused by the Circuit Court. The learned judge who sat in the Circuit Court, in passing on this motion, announced the following views:

'Whenever it appears on the petition and from all the pleadings that the controversy is wholly between citizens of different states, as it does here, one of several defendants, being actually interested therein, a nonresident, and a 'citizen' of another state, may remove it to a federal court, irrespective of whether the suit involved separate controversies, or only one. See Hunter v. Conrad et al. (C.C.) 85 F. 803. In Garner v. Second National Bank of Providence et al. (C.C.) 66 F. 309, it is held that, 'where an action is brought in a state court by a citizen of one state, any one of such defendants, without the others, may remove the cause to a federal court, though it contains but a single controversy.' In Boston Safe Deposit & Trust Company v. Mackay et al. (C.C.) 70 F. 801, it is held that where a citizen of one state commences an action in the state court of another state against three persons, two of whom are citizens of the state where the suit is brought, and one of whom is a citizen of a third state, such citizen of the third state may remove the case to the federal court. The Pullman Palace Car Company, a citizen of Illinois, sued by a citizen of Tennessee in a United States court of Louisiana, had a right to plead to the jurisdiction of that court, and move to dismiss the suit for want of jurisdiction, and demand that it be sued in a federal court in its own district of Illinois. But the plaintiff sues in a state court, and unquestionably the defendant, on showing that it is a citizen of the state of Illinois, and the plaintiff a citizen of the state of Tennessee, and its codefendant a citizen of Mississippi, and the amount in controversy exceeding, exclusive of interest and costs, the sum of two thousand dollars, and filing a bond as required by law, is entitled to be heard in the Circuit Court of the United States for the Southern District of Mississippi, notwithstanding its motion to dismiss in the United States Circuit Court for the Eastern District of Louisiana. The motion to remand must be denied.'

The Circuit Court having thus retained the case, such proceedings were thereinafter had as resulted in a verdict and judgment for the defendants, to review and reverse which the plaintiff sued out this writ of error.

Page 207

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.

McCORMICK, Circuit Judge (after stating the facts as above).

The first error assigned is the overruling and denying plaintiff's motion to remand this suit. Counsel for the Pullman Company urge that the jurisdiction of the Circuit Court in this case can be safely rested on the diversity of citizenship alone, and that the petition for removal need not have contained the additional averment that there was a separable controversy. In reference, however, to the averment of a separable controversy in the suit, they urge that the sufficiency of the roadbed and the proper handling of the train are matters...

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