Fidler v. WESTERN COAL & MINING CO.

CourtUnited States District Courts. 8th Circuit. Western District of Arkansas
Writing for the CourtYOUMANS
Citation33 F.2d 158
PartiesFIDLER v. WESTERN COAL & MINING CO. et al.
Decision Date11 June 1929

33 F.2d 158 (1929)

FIDLER
v.
WESTERN COAL & MINING CO. et al.

District Court, W. D. Arkansas, Ft. Smith Division.

June 11, 1929.


33 F.2d 159

Holland & Holland, of Ft. Smith, Ark., for plaintiff.

T. B. Pryor, of Ft. Smith, Ark., for defendant Western Coal & Mining Co.

YOUMANS, District Judge.

This cause was removed from the circuit court for the Greenwood district of Sebastian county, Ark., to this court by the Western Coal & Mining Company, which is a Missouri corporation. The other three defendants are Arkansas corporations.

It is conceded by the plaintiff that the cause of action stated in the complaint is a separable controversy so far as the defendants Mid-West Coal Company and Home Accident Company are concerned. The only question to be considered on this motion to remand is the relation to the controversy of the defendant corporation, Mama Coal Company.

There is no question about the amount in controversy or the fact that the Western Coal & Mining Company is a nonresident corporation.

The petition for removal states "that the plaintiff has for the fraudulent purpose of preventing this defendant from removing this cause to the Federal Court, and for the fraudulent purpose of defeating the Federal Court of jurisdiction, joined in this complaint the Mama Coal Company, Mid-West Coal Company and Home Accident Company, corporations organized under the laws of the State of Arkansas; that the Mama Coal Company has dissolved and surrendered its charter and is and was hopelessly bankrupt, and that no valid service has been had upon said company and that said Mama Coal Company was not in good faith joined as a party defendant."

The petition for removal, after certain allegations with reference to the Mid-West Coal Company and the Home Accident Company, proceeds to deny the allegations of negligence made in the complaint. In the motion to remand, the plaintiff states "that all of said defendants were joined in good faith and he denies that for the fraudulent purpose of preventing the Western Coal & Mining Company from removing this cause to the Federal Court, and for the fraudulent purpose of defeating the Federal Court of jurisdiction, said defendants were joined with said Western Coal & Mining Company, but said defendants were joined as parties defendant in good faith."

The motion to remand also denies that the Mama Coal Company is wholly bankrupt, and alleges that valid service had been made upon it.

The burden of proof is upon the Western Coal & Mining Company to show fraudulent joinder. Upon the hearing of the motion to remand, it developed that the only question involved was whether the Mama Coal Company had been made a party to the suit. It was undisputed that the Mama Coal Company had dissolved under section 35 of Act. No. 250 of the Acts of the General Assembly of Arkansas of 1927 (page 880). It was also undisputed that such dissolution was had after the time it was alleged in the complaint that the injury had been sustained by the plaintiff through the negligence of the Mama Coal Company and the Western Coal & Mining Company. It was also undisputed that the Mid-West Coal Company had been formed immediately after the dissolution of the Mama Coal Company.

Section 36 of Act 250 of the Acts of Arkansas of 1927 (page 881) reads as follows:

"Continuation of Corporation after Dissolution for the Purpose of Suit, etc. — All corporations, whether they expire of their own limitations or are otherwise dissolved, shall nevertheless be continued for the term of three years from such expiration or dissolution of bodies corporate for the purpose of prosecuting and defending suits by or against them and of enabling them gradually to settle

33 F.2d 160
and close their business, to dispose of and convey their property, and to divide their assets, but not for the purpose of continuing the business for which said corporation shall have been established."

Section 37 of the same act (page 881) reads as follows:

"Upon the dissolution of any corporation under the provisions of Section 45 35 of this act, or upon the expiration of the period of its corporate existence, limited by its certificate of incorporation, the directors shall be trustees thereof, with full power to settle the affairs, collect the outstanding debts, sell and convey the property, real and personal, and divide the monies and other property among the stockholders after paying or adequately providing for the payment of its liabilities and obligations."

Section 38 of the same act (page 882) reads as follows:

"Trustees under Dissolution; Powers and Liabilities. — The persons constituted trustees as aforesaid shall have authority to sue...

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3 practice notes
  • Heniford v. American Motors Sales Corp., Civ. A. No. 79-220.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 25, 1979
    ...R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. 129 F.Supp. 719, See a......
  • Stamm v. American Telephone & Telegraph Company, Civ. A. No. 9645.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 19, 1955
    ...R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. But what has this plai......
  • National Fire Ins. Co. v. Sanders, No. 75.
    • United States
    • New York District Court
    • June 15, 1929
    ...upon the insurance company in connection therewith, Sanders being cited by publication; that judgment has been rendered against Sanders 33 F.2d 158 on such constructive service, and the attachment sustained; that Sanders has advised the company that the policy covered his homestead, and tha......
3 cases
  • Heniford v. American Motors Sales Corp., Civ. A. No. 79-220.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • May 25, 1979
    ...R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. 129 F.Supp. 719, See a......
  • Stamm v. American Telephone & Telegraph Company, Civ. A. No. 9645.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • April 19, 1955
    ...R. Co., 169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673; Yulee v. Vose, 99 U.S. 539, 25 L.Ed. 355; Fidler v. Western Coal & Mining Co., D.C.Ark., 33 F.2d 158; Hane v. Mid-Continent Petroleum Corp., D.C.Okl., 47 F.2d 244, 247; Fogarty v. Southern Pacific Co., C.C., 121 F. 941. But what has this plai......
  • National Fire Ins. Co. v. Sanders, No. 75.
    • United States
    • New York District Court
    • June 15, 1929
    ...upon the insurance company in connection therewith, Sanders being cited by publication; that judgment has been rendered against Sanders 33 F.2d 158 on such constructive service, and the attachment sustained; that Sanders has advised the company that the policy covered his homestead, and tha......

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