City of Waco, Tex. v. United States Fidelity & Guar. Co.

• Decision Date: 13 January 1934
• Docket Number: No. 7045.,7045.
• Citation: 67 F.2d 785
• Parties: CITY OF WACO, TEX., v. UNITED STATES FIDELITY & GUARANTY CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 785 (1933)

CITY OF WACO, TEX., v. UNITED STATES FIDELITY & GUARANTY CO. et al.

No. 7045.

Circuit Court of Appeals, Fifth Circuit.

December 11, 1933.

Rehearing Denied January 13, 1934.

John McGlasson, of Waco, Tex., for appellant.

W. W. Naman, of Waco, Tex., and Chas. I. Francis, of Wichita Falls, Tex., for appellees.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Curtis Boggs, a citizen of Texas, sued Combs & Glade, contractors, both citizens of Texas, and the city of Waco, for damages received from running his car into an obstruction in a public street. The city by cross-action, as permitted by the Texas practice, vouched in the United States Fidelity & Guaranty Company, a citizen of Maryland, surety on the bond of Combs & Glade, alleging its obligation as surety to pay any liability created against the city by the acts of the contractors, and praying that if upon final trial plaintiff have judgment against the city, the city have judgment over against the Fidelity Company for a like amount. On the ground that a separable controversy existed, the Fidelity Company removed the cause to the federal court.

Plaintiff contested the removal in the state court, and on March 13 moved in the federal court for a remand. The motion denied the existence of a separable controversy, and therefore the removability of the suit, on the grounds: (1) That the removing defendant having come into the cause, not at the suit of plaintiff, but on the cross-action of a defendant, no separable controversy existed. (2) That there was improper joinder in bringing the Fidelity Company into the suit by cross-action of the city; (3) that the cross-action and the removal proceedings were collusively filed to defraud the state court of its jurisdiction; (4) that the controversy asserted by the cross-action was not in its nature separable, but was ancillary and incidental to the main suit, judgment in it being dependent on plaintiff's obtaining judgment in the main suit. The prayer was that the entire cause be remanded, and in the alternative, that the cross-action of the city be dismissed and the balance of the action remanded.

The District Judge disposed of these prayers in a single order. He first denied the prayer that the entire cause be remanded; then finding the Fidelity Company to be an improper and an unnecessary party to plaintiff's cause of action, he granted plaintiff's motion to dismiss as to it, and finding further that the granting of that motion left the court without jurisdiction of the cause, ordered the plaintiff's suit against the city of Waco remanded and the cross-complaint of the city against the Fidelity Company dismissed.

The city of Waco excepted to the whole judgment and gave notice of appeal. Its petition for appeal, however, limited the appeal to that portion of the order purporting, after the cause had been remanded, to dismiss the cross-action.

An order sustaining the demurrer to and striking out a pleading, or dismissing a cause of action, is ordinarily appealable. Floody v. Chicago, St. P., M. & O. R. Co., 104 Minn. 132, 116 N. W. 111; Major Ruff v. Gay, Recev. (C. C. A.) 67 F.(2d) 684.

The order complained of here would be, but for the fact that the entry of the remanding order rendered the order appealed from ineffective for want of jurisdiction, made moot all further proceedings in the federal court, and left the cause to stand and continue in the state court as though it had not been removed. Hammond Hotel & Imp. Co. v. Finlayson (C. C. A.) 6 F.(2d) 446; Wabash R. Co. v. Lindley (C. C. A.) 29 F.(2d) 829; National Farmers' Bank v. Moulton (C. C. A.) 32 F.(2d) 78; Floody v. Chicago, St. P., M. & O. R. Co., 104 Minn. 132, 116 N. W. 111; Levinski v. Middlesex Banking Co. (C. C. A.) 92 F. 449. And this is true whether abstractly...