St. Louis, A. & T. Ry. Co. v. Trigg

• Decision Date: 06 March 1897
• Citation: 40 S.W. 579
• Parties: ST. LOUIS, A. & T. RY. CO. et al. v. TRIGG.
• Court: Arkansas Supreme Court

40 S.W. 579

ST. LOUIS, A. & T. RY. CO. et al. v. TRIGG.

Supreme Court of Arkansas.

March 6, 1897.

Appeal from circuit court, Clark county; Rufus D. Hearn, Judge.

Action by R. L. Trigg against the St. Louis, Arkansas & Texas Railway Company and S. W. Fordyce and A. H. Swanson, receivers. From a judgment in favor of plaintiff, defendants appeal. Affirmed on condition of remittitur.

Sam H. West and Gaughan & Sifford, for appellants. Scott & Jones, for appellee.

McCAIN, Special Judge.

This was an action in tort against the Texas & St. Louis Railway Company and against the receivers of that company's property to recover damages caused by the flooding of appellee's land and crops. The receivers held their appointment from the federal court, and on that ground they filed an application to remove the cause to the United States circuit court. We conclude that under the ruling in Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, the cause was removable as being one involving the construction of a federal statute. See, also, Jewett v. Whitcomb, 69 Fed. 417; Rouse v. Hornsby, 161 U. S. 588, 16 Sup. Ct. 610. All the defendants, however, did not unite in the application for removal. This was essential. The language of the statute is that the "defendant or defendants" may remove the cause. Another clause of the same section allows "one or more of the defendants to remove," but appellants do not claim any right to remove under this last clause. Some of the federal judges, we find, have held that the phrase "defendant or defendants" is the same as if the language of the statute was the "defendants, or any of several defendants"; but we think this interpretation does some violence to the language of the act, and it is contrary to its spirit and policy. The supreme court of the United States have not passed on this question, so far as we are able to find, but a majority of the federal decisions support the view which we take of the statute. The following are among the several cases pro and con on this point: Ruckman v. Land Co., 1 Fed. 367; State v. Illinois Cent. Railroad Co., 16 Fed. 881; Insurance Co. v. Champlin, 21 Fed. 85; Mayor v. Steamboat Co., Id. 593; Stanbrough v. Cook, 38 Fed. 369; Landers v. Felton, 73 Fed. 312; Dill. Rem. Cause, § 15b. The wrong, or at least a part of the wrong, complained of by appellee was that appellants were guilty of maintaining a continuing public nuisance, and, looking at it in that light, we think it was not error to unite the railway company as a defendant in the same action with the receivers. This view of the case was antagonized by the first and third declarations of law asked by appellants, and hence there was no error in...