Ross v. Southern Ry. Co.

• Decision Date: 16 September 1937
• Citation: 20 F. Supp. 556
• Court: U.S. District Court — District of South Carolina
• Parties: ROSS et al. v. SOUTHERN RY. CO. et al.

20 F. Supp. 556

ROSS et al. v. SOUTHERN RY. CO. et al.

District Court, W. D. South Carolina.

September 16, 1937.

S. M. Wolfe, of Gaffney, S. C. (Wolfe & Fort, of Gaffney, S. C.), for petitioners.

Harry De Pass, Jr., of Spartanburg, S. C. (De Pass and De Pass, of Spartanburg, S. C.), for defendant Southern Ry. Co.

Wm. Alton Crow, of Spartanburg, S. C. (Nicholls & Russell, of Spartanburg, S. C.), for defendant Spur Distributing Co., Inc.

WYCHE, District Judge.

This matter is before me on petitioners' motion to remand the cause to the court of common pleas for Cherokee county, S. C., from which it was removed at the instance of the defendant Southern Railway Company, on the ground of diversity of citizenship.

The suit is one in equity for an injunction to prevent the erection, maintenance, and operation upon the right of way of the Southern Railway Company of a general distributing plant for petroleum products, and seeks a cancellation and annulment of a lease by the Southern Railway Company to its codefendant Spur Distributing Company for the use of the property upon which to erect and operate the said petroleum distributing plant.

Diversity of citizenship is admitted, but petitioners claim that the federal jurisdictional amount is not involved in the controversy, because it is not alleged in the complaint, and they contend that the court may not look further than the complaint to determine this question. This contention cannot be sustained. In deciding a motion to remand, all the record which is before the court should be considered to ascertain whether the requisite jurisdictional amount is involved in the controversy. Lever Bros. Co. v. J. Eavenson & Sons (D.C.) 7 F.Supp. 679; Martin v. City Water Company (D.C.) 197 F. 462, 465; Studebaker v. Salina Water Works Co. (D.C.) 195 F. 164, 165; Southern Cash Register Company v. National Cash Register Company (C.C.) 143 F. 659, 660, and cases there cited; Lord v. De Witt (C.C.) 116 F. 713 (per Lacombe, J.); Banigan v. City of Worcester (C.C.) 30 F. 392, 394; Sklarsky v. Great Atlantic & Pacific Tea Company et al. (D.C.) 47 F.(2d) 662, 663. In this case that record consists of not only the complaint but the petition and amended petition for removal, affidavits supporting the same, traverse to the petition for removal, and the motion to remand.

The matter in controversy in this suit is the prevention of the erection and maintenance upon the right of way of the Southern Railway Company of a general...