Chesapeake, O. & S.W. R. Co. v. Hendricks

• Decision Date: 01 May 1890
• Citation: 13 S.W. 696,88 Tenn. 710
• Parties: CHESAPEAKE, O. & S.W. R. Co. et al. v. HENDRICKS.
• Court: Tennessee Supreme Court

13 S.W. 696

88 Tenn. 710

CHESAPEAKE, O. & S.W. R. Co. et al. v. HENDRICKS.

Supreme Court of Tennessee.

May 1, 1890

Error to circuit court, Dyer county; THOMAS J. FLIPPIN, Judge.

Holmes Cummins and W. S. Draper, for plaintiffs in error.

Hamilton Parks, for defendant in error.

TURNEY C.J.

The action is to recover damages for the killing of J. C Hendricks on December 12, 1887. The first assignment of error is upon the refusal of the circuit court to transfer the cause to the United States circuit court. The grounds of the petition are that petitioner, at and before the commencement of suit, was, and is now, a citizen of Connecticut, and that Hendricks, administrator, was and still is a citizen of Tennessee; that the controversy is wholly between the petitioner, Newport News & Mississippi Valley Company, and the plaintiff, citizens of different states that the Chesapeake, Ohio & Southwestern Railroad Company is neither a necessary nor proper party to this suit; that plaintiff has joined said railroad company as a defendant simply for the purpose of endeavoring to defeat petitioner's right of removal; that the cause of plaintiff is a fraudulent, unjust, and illegal attempt to deprive said United States court of its lawful jurisdiction as well as a fraud on petitioner's right, etc.; that in 1888 plaintiff commenced his suit against the defendants for the same matters and things set forth and complained of; that, after beginning suit, plaintiff dismissed his said action against the Chesapeake, Ohio & Southwestern Railroad Company, and proceeded alone against petitioner; thereafter, on one of the days of March term, 1888, petitioner filed a petition for the removal of the cause to the circuit court of the United States; the circuit court of the state granted the prayer, etc.; afterwards plaintiff dismissed that suit, having theretofore begun the present one against the two companies, joining the latter fraudulently, and for the single purpose of divesting the federal court of its jurisdiction, and depriving petitioner of its right, etc.,--he having no claim whatever against the Chesapeake, Ohio & Southwestern Railroad Company; that by his dismissal of his former suit the plaintiff admitted and confessed that he had no cause of action against the party, and that his sole cause of action was against petitioner alone. The petitioner was answered with a definite denial of all fraud, of any admission or confession that the petitioner was alone liable, and insisting that both corporations were jointly and severally liable. The prayer of the petition was refused.

It is here insisted: "The sole question upon the petition for the state court to determine was whether, upon the face of the petition, a good cause for removal was made. If so, then the removal was matter of right, and, of course, subject however, only to inquiry in the federal court as to the truth of the allegations of the petition." To support this position, reference is had to several cases from the United States supreme court. The latest utterance to which our attention has been called is in the case of Railroad Co. v. Wangelin, 132 U.S. 601, 10 S.Ct. 203, in which Justice GRAY says: "It is equally well settled that in any case the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court." While, in the case before us, there is an allegation of fraud, which is denied, there was on proof offered to sustain it. The condition of the record in the state court at the time of filing the petition was not such as to warrant a removal. Trying the question by the face of the record, the jurisdiction of the state court was exclusive. That condition is sought to be changed by the unsworn petition of the defendant below, who moves for a removal upon extraneous allegations without proof. In Stone v. State, 117 U.S. 432, 6 S.Ct. 799, Chief Justice WAITE says: "A state court is not bound to surrender its jurisdiction of a suit on a petition for removal until a case has been made which on its face shows that the petitioner has a right to the transfer. * * * The mere filing of a petition for the removal of a suit which is not removable does not work a transfer. To accomplish this, the suit must be one that can be removed, and the petition must show a right in the petitioner to demand the removal. This being made to appear on the record, and the necessary security having been given, the power of the state court in the case ends, and that of the circuit court begins." In this case no application was made to the federal court, and, of course, that court could not settle the question. The federal question...