C. & O. Ry. Co. v. Bank's Admr.
Decision Date | 08 June 1911 |
Court | Kentucky Court of Appeals |
Parties | Chesapeake & Ohio Ry. Co., et al. v. Banks' Admr. |
Appeal from Clark Circuit Court.
SHELBY & SHELBY and PENDLETON, BUSH & BUSH for appellant.
JOUETT & JOUETT and A. FLOYD BYRD for appellee.
In this action by the administrator of Celia Banks to recover damages for her death alleged to have been caused by the negligence of the appellant railway company and its employes, a number of reasons are presented by counsel for the company why the judgment in favor of appellee against it should be reversed. But, before entering upon a discussion of the facts, and the errors alleged to have been committed during the trial, we will dispose of the question raised — that the case should have been removed to the Federal court on the motion and petition of the appellant company, which was made and presented in due time and form.
The appellant company is a Virginia corporation, and the suit was brought against it, Edward Owens the engineer and G. H. Sanders the fireman, both of whom are citizens of Kentucky and were in charge of the engine that struck appellee's intestate The allegations of the petition necessary to be noticed in considering the point under consideration are as follows:
It will at once be perceived that if this contention is maintainable the action against the railroad company should have been removed, although the petition stated a joint cause of action against all of the defendants sufficient to sustain a joint or several judgment against them. It will further be seen that its admission as a rule of practice would operate to work a removal to the Federal court so far as the non-resident defendant was concerned of every action involving two thousand dollars or more brought in a State court against a non-resident and resident defendants, and give to the Federal courts the exclusive right to hear and determine whether or not the action should be removed. The argument of counsel is that although the petition of the plaintiff may in good faith state a good joint cause of action against all of the defendants, and although the plaintiff may be able to support the petition by evidence that would amply sustain a judgment against all of them, nevertheless if the petition for removal charges as in this case that the joinder of the resident defendants was fraudulent the State court is at once and upon the filing of the removal petition divested of jurisdiction to near and determine the question of removal, and the action must be at once transferred to the Federal court, in which court the plaintiff if he desires to have the action remanded to the State court may go and make his motion, which the Federal court may grant or refuse as in its judgment may seem right and proper. Counsel, in short, would have us say that such an action as we have described brought in a State court that had jurisdiction of the subject matter of the action and the parties must be removed upon the mere filing of the petition, although the action could not have been brought in the Federal courts in the first instance, as the Federal courts have not jurisdiction where there is a joint controversy and one of the defendants is a resident of the State in which the action is brought. We fully appreciate the fact that in cases in which the Federal courts have jurisdiction their authority is paramount to that of the State courts and that the State courts must yield in all cases in which there is conflict of jurisdiction. Where the point in issue involves a Federal question and it has been ruled by the Supreme Court, the State courts should and do follow its ruling. But, on the other hand, if the action has been brought in a State court that has jurisdiction of the subject matter as well as of the parties to the action, its right to hear and determine the cause should not be surrendered in the absence of a plain ruling adverse to its jurisdiction by a court of superior authority. Questions like this have come before the Supreme Court in many cases, but we do not think the decisions of that Court sustain counsel in his contention that the filing of a sufficient removal petition and bond in an action rightfully brought in a State court and that could not be brought originally in the Federal court, operates to transfer the case merely because the removal petition charges a fraudulent joinder.
In Alabama Great Southern R. Co. v. Thompson, 200 U. S., 206, 50 L. ed., 441, an action was brought in a State court in Tennessee by the administrator of Florence James, who was a citizen of that State, for the negligent killing of his intestate by the defendant railroad company, against the railroad, an Alabama corporation, and Mills and Fuller, both citizens of Tennessee. The petition averred in substance that the plaintiff's intestate had been negligently and wrongfully run over while upon the track of the railroad company by an engine and train of cars owned and operated by it which was at the time under the management and control of Mills, its conductor, and Fuller, its engineer. The court, quoting with approval from the case of Powers v. Chesapeake & Ohio R. Co., 169 U. S., 92, 42 L. ed., 673, said —
" To the same effect is L. & N. R. Co., v. Wangelin, 132 U. S. 598, 33 L. Ed., 474.
To continue reading
Request your trial-
Illinois Cent. R. Co. v. Outland's Adm'x
...defendants was efficient to prevent a removal." A more recent announcement of the doctrine in question will be found in C. & O. Ry. v. Banks, 144 Ky. 137, 137 S.W. 1066, in the opinion of which it is "But in an effort to put at rest any doubt as to the position of this court upon questions ......