Blunt v. Southern Ry. Co.

• Decision Date: 06 August 1907
• Docket Number: 1,285.
• Citation: 155 F. 499
• Parties: BLUNT et al. v. SOUTHERN RY. CO.
• Court: U.S. District Court — Southern District of Alabama

155 F. 499

BLUNT et al. v. SOUTHERN RY. CO.

No. 1,285.

United States Circuit Court, S.D. Alabama.

August 6, 1907

Federal Courts 286.1

De Graffenried & Evins and Thomas E. Knight, for plaintiffs.

L. E. Jeffries, for defendant.

TOULMIN, District Judge.

If there are several coplaintiffs, the intention of the law is that each must be competent to sue, or if there be several defendants, each defendant must be liable to be sued, in the federal court, or the jurisdiction cannot be entertained. The controversy is not between citizens of different states, unless all the persons on one side of it are citizens of different states from all the persons on the other side. See note to Act March 3, 1875, c. 137, Sec. 1, 18 Stat. 470 (U.S. Comp. St. 1901, p. 508), in 4 Fed.St.Ann.p. 294, and authorities cited therein.

The test of the right of removal is that the case must be one over which the Circuit Court might have exercised original jurisdiction under section 1, Act March 3, 1875, as amended. Boston & Montana Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 188 U.S. 640, 23 Sup.Ct. 434, 47 L.Ed. 626. See note to section 2 of said act in 4 Fed.St.Ann.pp. 315, 316, and authorities therein cited.

An action of tort, which may be brought against one or more persons, and which is brought against two of them jointly, contains no separate controversy which will authorize its removal by one of them into the Circuit Court of the United States. Powers v. C. & O.R. Co., 169 U.S. 96, 18 Sup.Ct. 264, 42 L.Ed. 673; C. & O.R. Co. v. Dixon, 179 U.S. 135, 21 Sup.Ct. 67, 45 L.Ed. 121; Weaver v. Northern Pac. R. Co. (C.C.) 125 F. 155; Fox v. Mackay (C.C.) 60 F. 4.

Whether an action is one involving a separate controversy as to one of the defendants must be determined by what is alleged in the complaint. Ward v. Franklin (C.C.) 110 F. 795; Harley v. Home Ins. Co. (C.C.) 125 F. 792; Fogarty v. South. Pac. Co. (C.C.) 123 F. 973.

By the allegations of the complaint, and on the authorities cited supra, it appears to me that this cause has been improperly removed into this court; and it is therefore ordered that the same be, and it is hereby, remanded to the state circuit court.