Kincheloe v. Hopkins, 1804.

• Court: U.S. District Court — Northern District of Oklahoma
• Writing for the Court: R. D. Hudson, W. E. Hudson, and Sam S. Canterbury, all of Tulsa, Okl., for defendants
• Citation: Kincheloe v. Hopkins, 4 F.Supp. 196 (N.D. Okla. 1933)
• Decision Date: 29 July 1933
• Docket Number: No. 1804.,1804.
• Parties: KINCHELOE et al. v. HOPKINS et al.

4 F. Supp. 196

KINCHELOE et al. v. HOPKINS et al.

No. 1804.

District Court, N. D. Oklahoma.

July 29, 1933.

Speakman & Speakman, of Sapulpa, Okl., for plaintiffs.

R. D. Hudson, W. E. Hudson, and Sam S. Canterbury, all of Tulsa, Okl., for defendants.

FRANKLIN E. KENNAMER, District Judge.

This action was instituted in the district court of Tulsa county, Okl., for the recovery of damages for wrongful death. It was originally filed against the Hopkins Trucking Company, a firm composed of J. G. Hopkins and L. B. Hopkins, residents of the state of Oklahoma. By an amended petition, the Indian Territory Illuminating Oil Company, a Delaware corporation, was made a defendant. After issue had been joined, the cause came on for trial before the state district court. At the conclusion of the evidence, a demurrer was sustained in favor of the resident defendants, Hopkins Trucking Company. The trial proceeded to conclusion as to the defendant Indian Territory Illuminating Oil Company, and resulted in a mistrial. Plaintiffs filed their motion for a new trial within the statutory time, as against the order of the court sustaining the demurrer in favor of the resident defendants. Thereafter, plaintiffs requested another trial of the cause as to the nonresident corporate defendant. Upon plaintiffs' requesting the clerk of the state district court to set for trial the issues between the plaintiffs and the nonresident defendant, the Indian Territory Illuminating Oil Company filed its petition for removal. Before the petition for removal was passed upon by the court, plaintiffs' motion for a new trial was overruled, at which time plaintiffs gave notice of their intention to appeal to the Supreme Court of Oklahoma to review the ruling of the court in overruling the motion. There is no controversy about the fact that plaintiffs intend to appeal to the Supreme Court from the order overruling their motion for a new trial, and from the order sustaining the demurrer of the resident defendant. After overruling plaintiffs' motion for a new trial, the state court entered the order of removal. Plaintiffs have interposed their motion to remand the cause to the state court. The theory upon which the nonresident defendant removed the cause to this court is that the act of the plaintiffs in asking that the cause be set for trial in the state court as against the Indian Territory Illuminating Oil Company constituted an election to pursue the nonresident defendant only, and was a voluntary discontinuance of plaintiffs' joint action against the nonresident and the resident defendants. The removing defendant further contends that the cause was not originally removable to the United States District Court, but that it became removable at the date of plaintiffs' election to pursue the action against the nonresident defendant. The question presented for determination is whether the action of plaintiffs in requesting a trial of the cause against the nonresident defendant only, after a demurrer had been sustained to the evidence as to the resident defendants, to which plaintiffs had objected, and from which order plaintiffs are appealing to the Supreme Court of the state, constitute a voluntary discontinuance of plaintiffs' cause against the resident defendants, and is an election to pursue the nonresident alone.

There can be no question but that a case may be removed from the state to a federal court at any stage of the proceeding in the state court when the cause becomes removable. Powers v. Chesapeake & O. R. Co., 169 U. S. 92, 18 S. Ct. 264, 42 L. Ed. 673. It is equally well established that a joint cause of action against resident and nonresident defendants becomes removable as to the nonresident defendants only upon a voluntary dismissal or discontinuance by plaintiff as to the resident defendant, and that such voluntary action by the plaintiff has taken the resident defendant out of the case so as to leave a controversy wholly between the plaintiff and the nonresident defendant. However, the voluntary dismissal as to resident defendants is very different to a dismissal by the court; voluntary dismissal authorizes instant removal, while involuntary dismissal affords no such right. Powers v. Chesapeake & O. R. Co., supra; Great Northern R. Co. v. Alexander, 246 U. S. 281, 38 S. Ct. 237, 62 L. Ed. 713; Danforth v. Pure Oil Co. (D. C.) 20 F.(2d) 387; Ford v. Roxanna Petroleum Corporation (D. C.) 31 F.(2d) 765. The same rule obtains where a demurrer is sustained to the evidence because of insufficiency to warrant a verdict. American Car & Foundry Co. v. Agnes Kettelhake, 236 U. S. 311, 35 S. Ct. 355, 59 L. Ed. 596; Danforth v. Pure Oil Co., supra. This case comes squarely within the principles of law above set forth, as there has not been a voluntary dismissal or discontinuance by the plaintiffs as to the resident defendants. The nonliability of the resident defendants was ruled in invitum. However, the removing defendant herein asserts that the case became removable as to it as soon as the plaintiffs requested a trial between the plaintiffs and the nonresident defendant. It insists that the request for a trial constituted an election to pursue the nonresident defendant only, and was a discontinuance of the action against the resident defendants. I cannot agree with these contentions. The ruling of the court in sustaining the demurrer as to the resident defendants did not constitute a discontinuance of the plaintiffs' cause against the resident defendants. Plaintiffs, by appealing from the order, were doing everything within their power to pursue the resident defendants. They have not abandoned their cause of action against them, but on the contrary are pursuing rights afforded them at law to assert their cause of action against the resident defendants. Thus, there has not been a discontinuance or a dismissal of plaintiffs' case against the resident defendants. The requesting of a trial of the case against the non-resident defendant cannot have the effect of constituting a dismissal or discontinuance as to the resident defendants. The rule by which a dismissal or discontinuance as to the resident defendants is measured is that such voluntary action by the plaintiffs must have taken the resident defendants out of the case so as to leave a controversy wholly between the plaintiffs and the nonresident defendant. Plaintiffs' petition states a joint cause of...