Kelly v. Chicago & A. Ry. Co.

• Decision Date: 27 April 1903
• Court: U.S. District Court — Western District of Missouri
• Parties: KELLY v. CHICAGO & A. RY. CO. et al.

122 F. 286

KELLY v. CHICAGO & A. RY. CO. et al.

United States Circuit Court, W.D. Missouri, Western Division.

April 27, 1903

I. N Watson, for plaintiff.

F Houston, for defendants.

PHILLIPS District Judge.

This action was instituted in the circuit court of Jackson county Mo., on the 6th day of June, 1902. As originally instituted, the suit was against the Chicago & Alton Railway Company and L.A. Strause, defendants. No writ of summons appears to have been issued against the defendant Strause. A writ of summons was issued against the Chicago & Alton Railway Company on the 10th day of June, 1902, made returnable on the second Monday in October; it being the 13th day of the month, which was the first day of the October term, 1902, of said court. Afterwards, on the 18th day of September, 1902, in vacation of court, it seems that the plaintiff filed an amended petition herein; making the Kansas City, St. Louis & Chicago Railroad Company a party defendant. The transcript recites that said amended petition cannot be found with the papers, and is not, therefore, certified up with the transcript. The transcript does not show that any writ of summons ever issued against the railroad company added in the amended petition. On October 14, 1902, which was the second day of the said October term of the state court, the defendant Chicago & Alton Railway Company filed its petition praying a removal of the cause into this court, from which petition it appears that the Chicago & Alton Railway Company was at the time of the institution of the suit, and yet is, a corporation of the state of Illinois, and that the plaintiff, Kelly, was during the time aforesaid, and still is, a citizen of the state of Missouri, and that the Kansas City, St. Louis & Chicago Railroad Company is also a citizen of the state of Missouri. What the allegations of the amended petition were as to how the latter company became liable to the action, the court is not advised, because the petition is not in the transcript; but it is alleged in the petition for removal of the cause that prior to June 21, 1901, said Kansas City, St. Louis & Chicago Railroad Company leased its road to the Chicago & Alton Railroad Company, which latter road subsequently, in April, 1900, re-leased said road to the defendant Chicago & Alton Railway Company, which was in possession and control of said road, and was alone operating the same, on the 21st of June, 1901, at the time of the injury in question; that the Kansas City, St. Louis & Chicago Railroad Company at the time of the alleged injury had no control or authority whatever over said train, and was not operating it, and did not own it, and was in no wise liable to the plaintiff on account of the negligence of which he complains; that the defendant Strause was at said time an employe of the Chicago & Alton Railway Company, and had nothing whatever to do with the inspection or control over the engine of which the plaintiff complains; that he was a mere yard master, whose duties were confined exclusively to the making up of trains; and therefore there is no joint liability existing between the petitioning railroad and the other defendants. The petition alleges that the other defendants were joined solely for the purpose of preventing the Chicago & Alton Railway Company from removing the case into this jurisdiction. It tendered with said petition for removal a sufficient bond. At said October term of said court, and on the 5th day of December, 1902, the state circuit court made an order approving said bond, and ordering the cause removed into this court.

The first ground of the motion to remand, which will be considered by the court, is that the suit was brought to the October term of the Jackson county circuit court, and summons was had upon the defendant Chicago & Alton Railway Company more than 15 days prior to the first day of the term, and the defendant Chicago & Alton Railway Company did not appear and file its petition and bond for removal in the time required by law. In other words, the contention of plaintiff's counsel is that the petition for removal should have been presented, in my opinion, is now well taken. The amendatory act, approved March 22, 1901 (Laws Mo. 1901, pp. 86; section 597 of the practice act), in the first provision thereof, applies to counties having over 40,000 inhabitants, which declares that:

'Every defendant who shall be summoned or notified according to law shall demur to or answer the petition on or before the third day of the term at which he is bound to appear, unless longer time be granted by the court; and in every such case the action shall be triable at the return term.,

This part of the section is complete in its provisions respecting suits instituted in counties, like Jackson county, having a population of over 40,000 inhabitants. It requires that the defendant shall demur or answer the petition on or before the third day of the term, and makes the case absolutely triable at that term. The proviso of the statute has exclusive reference to suits instituted in counties having 40,000 inhabitants or less. Every defendant in such case summoned or notified 15 days prior to the return term shall demur or answer to the petition on or before the first day of the term at which he is required to appear, unless further time be granted by the court. The second clause of said proviso has reference to the preceding part of the proviso, and should be read, 'and in all such cases where the defendant is served with process 30 days before the return term, he shall demur or answer to the petition on or before the first day unless longer time be granted by the court, and all such suit, where he has had 30 days' notice, shall be triable at the first term. ' It was stated by counsel at the hearing of this motion, and I doubt not its correctness, that the practice in the state circuit court of Jackson county recognizes the right of defendants to plead at any time within the first three days of the term. This construction of the act in question, as applied to Jackson county, I am satisfied, is correct. This objection, therefore, to the removal of the action is overruled.

The next objection to the removal is that the plaintiff and two of the defendants at the time of the institution of the suit were citizens of the state of Missouri; having reference, I assume, to the citizenship of the Kansas City, St. Louis & Chicago Railroad Company and the defendant L. A. Strause. It is to be borne in mind, as already stated that this suit was originally instituted against the Chicago & Alton Railway Company and L. A. Strause. When the Chicago & Alton Railway Company was summoned to appear and answer to the complaint, it was to that of the plaintiff against it and said Strause. After it was so summoned, and before the return day of the writ of summons, the plaintiff filed in the clerk's office, in vacation, what he terms an 'amended petition,' making the Kansas City, St. Louis & Chicago Railroad Company a party defendant. It does not appear that any notice of this amended petition was served on the Chicago & Alton Railway Company. It has been expressly decided by this court, in Peterson v. Chicago, M. & St. P. Railway Company, 108 F. 561, that the practice act does not recognize the right of a plaintiff to file such amended petition in vacation in the clerk's office prior to the term of court at which the first defendant was summoned to appear, and that the plaintiff cannot, by this species of maneuver, defeat the right of the defendant originally sued, and served with summons, to appear to the action and petition for a removal.

In this state of the record, the petition of the Chicago & Alton Railway Company for a removal of the cause alleges that the defendant Strause was at the time of the injury in question an employe of the petitioner, and had nothing whatever to do with the inspection or other control over the engine of which the plaintiff complains, and that the duties of said Strause were those of a yard master-- confined exclusively to the making up of trains; and that said Strause was joined as a codefendant for the sole purpose of avoiding and defeating the jurisdiction of the United States court, and to fraudulently deprive the petitioner of the right of removal. This petition is supported by affidavit. Even where the petition stating the cause of action on its face presents a joint liability between a resident and non-resident defendant, it may nevertheless be shown in the petition for removal that in fact no cause of action exists against the resident defendant, and that his joinder as a codefendant was for the purpose of defeating the removal of the cause, and that where this allegation of the petition for removal is supported by proofs, as by affidavits, it devolves upon the plaintiff to take issue upon this fact, which issue shall be tried by the United States court, and, if the plaintiff fail to controvert such petition and affidavit, the allegations of the petition for removal stand admitted. Ross v. Erie R. Co. et al. (C.C.) 120 F. 703; Dow v. Bradstreet Company et al. (C.C.) 46 F. 824, 827, 828; Durkee v. Illinois Central Railroad Company (C.C.) 81 F. 1; Prince v. Illinois Central Railroad Company (C.C.) 98 F. 1; Arrowsmith v. N. & D.R. Co. (C.C.) 57 F. 170.

Beyond all this, the plaintiff, in stating his cause of action, does not show a joint liability of the Chicago & Alton Railway Company and said Strause. The injury to the plaintiff resulted directly from the explosion of an engine owned and operated by the Chicago & Alton Railway Company while drawing a train of cars near the city of Independence, Mo., on which train plaintiff was a passenger. The...