Louisville Co v. Wangelin

• Decision Date: 06 January 1890
• Parties: LOUISVILLE & N. R. CO. v. WANGELIN
• Court: U.S. Supreme Court

132 U.S. 599

10 S.Ct. 203

33 L.Ed. 473

LOUISVILLE & N. R. CO. v. WANGELIN.

January 6, 1890.

[Statement of Case from pages 599-601 intentionally omitted] J. M. Hamill, for plaintiff in error.

C. W. Thomas, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

It has been often decided that an action brought in a state court against two jointly for a tort cannot be removed by either of them into the circuit court of the United States, under the act of March 3, 1875, c. 137, § 2, upon the ground of a separable controversy between the plaintiff and himself, although the defendants have pleaded severally, and the plaintiff might have brought the action against either alone. 18 St. 471; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. Rep. 730; Mining Co. v. Canal Co., 118 U. S. 264, 6 Sup. Ct. Rep. 1034; Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. Rep. 1265. 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. In Mining Co. v. Canal Co., above cited, a suit by a canal company against a mining corporation and its agents, for polluting a stream of water belonging to the plaintiff, was held to have been rightly remanded to the state court in which it had been commenced, although the corporation's petition for removal alleged that it was the only real defendant, and that the other defendants were nominal parties only, and were sued for the purpose of preventing the corporation from removing the cause into the circuit court of the United States. Chief Justice WAITE, in delivering judgment, said: 'It is possible, also, that the company may be guilty and the other defendants not guilty; but the plaintiff, in its complaint, says they are all guilty, and that presents the cause of action to be tried. Each party defends for himself, but, until his defense is made out, the case stands against him, and the rights of all must be governed accordingly. Under these circumstances, the averments in the petition that the defendants were wrongfully made [parties] to avoid a removal can be of no avail in the circuit court upon a motion to remand, until they court upon a motion to remand, until they are pr ven; and that, so far as the present record discloses, was not attempted. The affirmative of this issue was on the petitioning defendant. That corporation was the moving party, and was bound to make out its case.' 118 U. S. 270, 271, 6 Sup. Ct. Rep. 1038. In Little v. Giles, 118 U. S. 596, 7 Sup. Ct. Rep. 32, where a bill in equity charged the defendants jointly with having fraudulently deprived the plaintiff of her property, Mr. Justice BRADLEY, delivering the opinion of...