Price v. Southern Power Co.
| Decision Date | 21 July 1913 |
| Citation | 206 F. 496 |
| Parties | PRICE v. SOUTHERN POWER CO. et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas F. McDow and J. S. Brice, both of Yorkville, S.C., for plaintiff.
McDonald & McDonald, of Winnsboro, S.C., and Osborne, Cocke & Robinson, of Charlotte, N.C., for defendants.
This cause came on to be heard on a motion to remand the same to the court of common pleas for the county of York, and having been heard on the pleadings and the affidavits submitted by each side, and counsel on both sides having been heard. It is ordered and adjudged as follows:
The petition for removal sets up as ground for removal: That the entire controversy in the cause is between the plaintiff and the defendant seeking to remove the action, viz., the Southern Power Company, and that the defendant the Southern Power Company is a citizen of the state of New Jersey and the plaintiff a citizen of South Carolina. That the other defendant, the Catawba Power Company, is a citizen of the state of South Carolina, but is a wholly unnecessary party and has been by the plaintiff joined as a codefendant for the purpose of fraudulently preventing a removal of the cause to this court; the plaintiff well knowing at the time of the institution of the action that the Catawba Power Company was not a necessary or proper party. The removal is not sought on the ground that in the proceeding instituted by the plaintiff there is involved a controversy or cause of action separate and distinct from other controversies in the cause, and which separate controversy can be wholly determined between the plaintiff and the Southern Power Company without the presence of the other defendant, but it is sought on the ground that the only cause of action set up by the plaintiff is one between the plaintiff and the Southern Power Company, and that the joinder of the Catawba Power Company has been fraudulently made in order to prevent a removal.
Inasmuch as, if the Catawba Power Company was not a defendant, there would, under the complaint and the allegations of the petition for removal, be no question as to the right of the defendant the Southern Power Company to remove, the question is limited to whether there has been a fraudulent joinder of the Catawba Power Company as a defendant for the purpose of preventing a removal. The plaintiff insists in the affidavits filed that the joinder of the Catawba Power Company was made in the utmost good faith; that the record had been diligently searched, and that it showed the Catawba Power Company to be the party owning the power plant and the main line transmitting the electric power which caused the injury; that there was nothing on the record to show any transfer of any kind to the Southern Power Company, which presumptively was operating the lines, both main and spur, as the lessee or agent of the Catawba Power Company; that the plaintiff had no knowledge of anything to the contrary, and that under these circumstances the plaintiff was entitled to hold both defendants responsible.
To support its position the defendant seeking the removal has filed affidavits to the effect that the Catawba Power Company had, some time prior to the injury complained of, transferred to the Southern Power Company its entire interest in the main transmission line by which the electric power was transmitted from the point of production to the spur line on which the injury complained of was inflicted, and that the spur line never had been owned by the Catawba Power Company, but had been constructed by the Southern Power Company, by which last company both the spur line as well as the main transmission line were exclusively operated at the time of the injury, and that the Catawba Power Company had no connection with the lines or their operation and could be in no wise responsible for the injury alleged in the complaint.
The right of a citizen of another state, when sued in the state court of South Carolina by a citizen of South Carolina, to have the controversy heard and determined in this court is constitutional, and under the statute passed in pursuance of the Constitution for the removal of such actions to this court that right cannot be defeated by the fraudulent joinder as a codefendant of a citizen of South Carolina for the purpose of defeating a removal to this court and the trial in the proper jurisdiction....
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