Carothers v. McKinley Mining & Smelting Co.

• Citation: 122 F. 305
• Decision Date: 16 March 1903
• Docket Number: 754
• Parties: CAROTHERS v. McKINLEY MINING & SMELTING CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

122 F. 305

CAROTHERS v. McKINLEY MINING & SMELTING CO. et al.

No. 754

United States Circuit Court, D. Nevada.

March 16, 1903

Motion to Remand.

This is an ordinary action of ejectment to recover the possession of certain mining ground, and damages for the withholding thereof. The action was commenced in the state court. The complaint, as to the citizenship of the parties, alleges (1) that said McKinley Mining & Smelting Company is a corporation organized and existing under and by virtue of the laws of the state of New York; that the said Canton Mining Company is a corporation organized and existing under and by virtue of the laws of the state of Ohio; that said Mrs. William McKinley and Mrs. Marshall Barber are residents and citizens of the state oh Ohio; that the defendant Dix W. Smith is a resident and citizen of the state of New York, and William N. McGill and this plaintiff are residents and citizens of the state of Nevada. The complaint further alleges (2) that ever since on or about the 16th day of October, A. D. 1890, this plaintiff has been, and now is, the owner of, and entitled to the possession of, the following described mining claim and ground, situated in White Pine county, Nev., to wit, the Fair Play mining claim, at one time known as the 'Saxton Mine,' situated in Robinson mining district, in White Pine county, Nev., and bounded and particularly described as follows (here follows a specific description by metes and bounds); (3) that plaintiff was in the quiet, peaceable open, notorious, exclusive, and adverse possession of said mining ground, adverse to each and all of said defendants and adverse to all the world, from said October 16, A.D 1890, to on or about the 3d day of December, A.D. 1901; (4) that on or about the 3d day of December, A.D. 1901, while plaintiff was such owner, and so possessed, and entitled to the possession, of said land and mining claim and ground, the said defendants did enter into and upon the same, and oust and eject this plaintiff therefrom, and ever since that day have wrongfully and unlawfully withheld, and still and now do wrongfully and unlawfully withhold, the possession thereof from this plaintiff, to his wrong, injury, and damage in the sum of $1,000.

In the petition for removal, joined in by all of the defendants except W. N. McGill, it is alleged that the defendant McGill has no interest in the subject-matter or controversy in this action, except as the agent or officer of the defendant the McKinley Mining & Smelting Company, and that his acts in the premises were as an officer of said company, and not otherwise; that the averments in the complaint of a joint claim, ouster, withholding, and liability of defendant McGill with the other defendants, or either of them, 'are unfounded in fact, and were not made in good faith, with the expectation of proving them at the trial'; that McGill was improperly and fraudulently joined as a party defendant with petitioners 'for the sole and express purpose of defeating the jurisdiction of the United States Circuit Court for the District of Nevada'; that said McGill is not a necessary party to the controversy herein, and has no right title, or interest in said property or controversy.

The defendant McGill in this court filed a separate answer, in which he avers 'that he is not in possession of said premises mentioned in plaintiff's complaint under any claim in his own right, but only as an officer and agent of the defendant McKinley Mining & Smelting Company, a corporation of the state of New York, and under the direction and control of said corporation, without any voluntary act of his own; that in his own right he sets up no right, claim, or title or demand to the said premises, save and except that which behooves him and is proper as an agent and officer of the said McKinley Mining & Smelting Company, a corporation, especially disclaiming any and all other right, title, or interest therein'-- and denies that he is a proper or necessary party defendant to this suit, and asks to be dismissed with his costs. He also filed an affidavit denying that he ever claimed any right, title, or interest in said property, and further stated that he verily believes 'that when said plaintiff commenced this present action said plaintiff well knew that this affiant claimed no right, title, or interest in the property described in the said complaint or the possession thereof, and had never ousted or ejected said plaintiff therefrom in his own right or for himself, or otherwise than for and on behalf of, and as the act of, said McKinley Mining & Smelting Company, and that this affiant was made a party defendant to this action by said plaintiff for no other purpose than to prevent the removal of said cause into this court, and to defeat the jurisdiction of this court.'

The plaintiff's counsel filed an affidavit denying 'every allegation of fraud contained in defendants' petition for the removal of the cause concerning the joining of William N. McGill as a party defendant in this action for the fraudulent purpose of defeating the jurisdiction of this court'; that, as counsel, he advised the naming and joining of all the defendants herein as parties defendant; that at the time of giving said advice he had before him a notice in writing as follows:

'Notice.

'To Wm. J. Carothers: You are hereby notified that you are working on the 'Saxton Mine,' the sole ownership of which is in 'The McKinley Mining and Smelting Company,' and you are hereby further notified by said company to cease working on the same, and upon your failure to do so, you will be held liable for trespass.

'The McKinley Mining and Smelting Company, 'By W. N. McGill, Managing Director.'

And further, that he advised plaintiff that McGill was legally liable for the ouster and trespass, and was a proper party to be made a party defendant in this action.

E. V. Higgins and Trenmor Coffin, for plaintiff.

Cheney, Massey & Smith, for defendants.

HAWLEY District Judge (orally).

This is a companion case to Carothers v. McKinley M. & S. Co. (D.C.) 116 F. 947. The plaintiff, after the court denied the motion to remand in that cause, dismissed the case, and thereafter commenced the present action in the state court. The motion in the present case clusters around the question as to whether or not William N. McGill is a proper or necessary party defendant, or whether he was joined as a party defender for the sole purpose of depriving the other defendants of their right to remove the cause to this court on the ground of the diversity of citizenship existing between them and the plaintiff. There is really no controversy as to the facts. There is no pretense on the part of the plaintiff that William N. McGill, as a party defendant, had any interest in the property involved in this suit. Plaintiff simply contends that McGill is a proper and necessary party because he was a wrongful actor, and actively participated in ousting him from the possession of the mining ground in controversy. He seeks to maintain the position contended for upon the general principle, often applied in cases of tort and trespass, that, where the alleged wrongful act is of such a nature or character that it might have been committed by two or more persons, the injured party may bring his action separately or jointly against all or any of the persons who wrongfully contributed, as actors, directors, aiders, or abettors, in the commission of the wrongful act, because in such cases the parties participating in the wrongful act, are jointly and severally liable for the acts of each and of all. Authorities in support of this general principle can be found in nearly all the states, and are too numerous to require citation. Reference, however, is here made to Cooley on Torts (2d Ed.) 136; 21 Ency.Pl.& Pr. 806, 807, where many of the authorities upon this subject are cited.

Do the facts of this case bring it within this general rule? It may be admitted that if the case had been presented upon the complaint alone, and the right of removal rested solely upon the diversity of citizenship therein alleged, the cause would...