Highway Const. Co. v. McClelland
| Decision Date | 04 October 1926 |
| Docket Number | No. 7179.,7179. |
| Citation | 15 F.2d 187 |
| Parties | HIGHWAY CONST. CO. et al. v. McCLELLAND. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Inghram D. Hook, of Kansas City, Mo., for plaintiffs in error.
Roger S. Miller and Scott J. Miller, both of Chillicothe, Mo., for defendant in error.
Before STONE, KENYON, and BOOTH, Circuit Judges.
Defendant in error has filed a petition for rehearing; plaintiff in error has filed "suggestions" in support of the same. Both parties unite in the contention that the court below had jurisdiction to try the cause.
From the whole record, including the petition for rehearing and the "suggestions" in support of the same, we gather the following facts: The case was originally commenced in the state court, but removed to the federal court. The petition for removal was based on diverse citizenship: (1) As between plaintiff and defendant Highway Construction Company, a separable controversy being alleged between those two parties; or (2) as between plaintiff on one side and defendants Highway Construction Company and Stewart on the other side, Dunn, the remaining defendant, being alleged to have been fraudulently joined. No motion to remand was made. The court below did not pass upon the question of fraudulent joinder of Dunn, nor upon the question of a separable controversy between plaintiff and defendant Highway Construction Company.
Whether there was a separable controversy depends upon the allegations of the original complaint, not upon the allegations of the petition for removal. We have grave doubt whether the original complaint showed the existence of a separable controversy, but we do not find it necessary to determine that question. From the whole record we gather the further facts:
The removal being completed, plaintiff, apparently with the consent of the court, filed an amended complaint. Two additional defendants were added, Morgan and Sandusky. Their citizenship was not shown. The cause of action stated in the amended complaint was a joint one against all of the defendants, and was so treated in the court below. Whether defendant Dunn remained in the case appears to be uncertain. From the record it would seem not, although there is no order eliminating him. Counsel for defendant in error, however, assert that Dunn remained in the case until the court directed a verdict for him.
From the foregoing facts it appears that there was thus presented to the court below for trial a case which had been removed from the state court on the ground of diversity of citizenship, in which the separable controversy, if one ever existed, had been abandoned, and in which the diversity of citizenship did not appear — a case which in its then condition could not have been removed from the state court nor brought in the federal court.
But it is contended by counsel on both sides that, inasmuch as the case had been removed and no motion had been made to remand, the federal court had jurisdiction, and that nothing which happened afterward could devest such jurisdiction. We cannot agree with this contention. While it is the general rule that jurisdiction, once having...
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...(Federal Rule of Appellate Procedure and Local Rule 35), the suggestion for rehearing en banc is DENIED. 1 See Highway Constr. Co. v. McClelland, 8 Cir.1926, 15 F.2d 187, 188:While it is the general rule that jurisdiction, once having attached, will not be devested by subsequent events, yet......
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...whose presence will destroy diversity of citizenship and the federal jurisdiction which rests thereon are: Highway Construction Co. v. McClelland, 8 Cir., 15 F.2d 187; Galbraith v. Bond Stores, Inc., D.C.W.D. Mo., 4 F.R.D. 319; Roecker v. Railways Express Agency, Inc., D.C.W.D.Mo., 63 F.Sup......
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