The State ex rel. Hancock v. Falkenhainer

• Citation: 291 S.W. 466,316 Mo. 651
• Decision Date: 15 February 1927
• Docket Number: 26175
• Parties: The State ex rel. Ensul C. Hancock, Petitioner, v. Victor H. Falkenhainer and John W. Calhoun, Judges of Circuit Court of City of St. Louis
• Court: United States State Supreme Court of Missouri

291 S.W. 466

316 Mo. 651

The State ex rel. Ensul C. Hancock, Petitioner, v. Victor H. Falkenhainer and John W. Calhoun, Judges of Circuit Court of City of St. Louis

No. 26175

Supreme Court of Missouri

February 15, 1927

Record of Circuit Court quashed.

Jesse T. Friday for relator.

(1) The court erred in granting the petition for removal, because the record showed, as a matter of law, that there is no complete diversity of citizenship conferring Federal jurisdiction, and that there are no facts sufficiently alleged showing an exception to the requirement of complete diversity of citizenship for Federal jurisdiction, because: (a) The facts alleged to show fraudulent joinder are, as a matter of law insufficient; and (b) The record showed, as a matter of law that there is no separable controversy authorizing removal. (2) A petition for removal based on "fraudulent joinder" must affirmatively allege facts "rightfully engendering that conclusion." C. R I. & P. Ry. v. Whiteaker, 239 U.S. 241, affirming Whiteaker v. Railroad, 252 Mo. 438; C. & O. Ry v. Cockrell, 232 U.S. 146; C. R. I. & P. Ry. v. Dowell, 229 U.S. 102; C. B. & Q. Ry. v. Willard, 220 U.S. 413; C. R. I. & P. Ry. v. Schwyhart, 227 U.S. 184, affirming Schwyhart v. Railroad, 145 Mo.App. 332; McAllister v. Railroad, 242 U.S. 302. It is not sufficient to allege that the joinder is fraudulent, or made in bad faith, or for the mere purpose of defeating Federal jurisdiction, or that one or both defendants are not liable, or to traverse the allegations of negligence, or to state that the resident defendant is a man of small means, or that there is no real intention to recover against him. And plaintiff's motive in joining the resident defendant is immaterial. C. B. & Q. Ry. v. Willard, 220 U.S. 427. In this case the allegations of fraudulent joinder in the petition for removal are, as a matter of law, insufficient. (3) "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." L. & N. Railroad v. Wangelin, 132 U.S. 599. If, under the State law, plaintiff's petition shows that the defendants are jointly liable (i. e., subject to joint suit and judgment) then there is not and cannot be a separable controversy. Railroad v. Willard, 220 U.S. 413; Railroad v. Dowell, 229 U.S. 102; Railroad v. Dixon, 179 U.S. 131; Alabama Ry. Co. v. Thompson, 200 U.S. 206; Railroad v. Schwyhart, 227 U.S. 184; Brunski v. Ford Motor Co., 299 F. 807. In this case plaintiff's petition states a cause of action against both defendants for which they are jointly liable. Freese v. Iron Co., 274 S.W. 778; Railroad v. Schwyhart, 227 U.S. 184, affirming Schwyhart v. Railroad, 145 Mo.App. 332; Railroad v. Dowell, 229 U.S. 102; Johnson v. Foundry Co., 259 S.W. 442; Enloe v. Foundry Co., 240 Mo. 443; Dayharsh v. Railroad, 103 Mo. 576; Jost v. Foundry Co., 246 S.W. 340; Mertz v. Rope Co., 174 Mo.App. 94; Morin v. Rainey, 207 S.W. 858; Bright v. Brick Co., 201 S.W. 641; Loretta v. Can Co., 246 S.W. 997; English v. Shoe Co., 145 Mo.App. 439; Comisky v. Heating Co., 219 S.W. 999; Baird v. Mills Co., 203 Mo.App. 432; State ex rel. Duvall v. Ellison, 283 Mo. 532. The contention that "under the law the defendant Axelson Machine Company, as the master, is solely liable for any injuries suffered by the plaintiff under the allegations of his petition, if any liability exists, and the defendant Carlson, under the allegations of the petition of plaintiff, is not in anywise liable to the plaintiff for such injuries," stated in the petition for removal and repeated in the suggestions opposing relator's petition for the writ, is wholly without merit. The facts stated in the plaintiff's petition show a clear case of liability against the foreman, defendant Carlson. Baird v. Mills Corp., 203 Mo.App. 437. (4) In Missouri, certiorari is the proper remedy (and only remedy) to reverse or quash an erroneous decision granting removal. State ex rel. Iba v. Mosman, 231 Mo. 474. (5) The denial by this court of a prior petition by relator for a writ of certiorari involving this same cause does not constitute a bar to this proceeding. State ex rel. Wurdeman v. Reynolds, 275 Mo. 121. (6) Relator was not guilty of laches or unreasonable delay in petitioning this court for a writ of certiorari because: (a) No time is fixed by statute within which the application must be made. (b) No prejudice has resulted or is claimed to have resulted to anyone from delay. (c) The writ of certiorari in this cause is analogous to and in lieu of a writ of error for which one year is allowed. Sec. 1487, R. S. 1919; Union Dr. Dist. Comr. v. Volke, 163 Ill. 243. (d) The rule of decision by this court that a petition for a writ of certiorari to a court of appeals should be filed within thirty days after judgment is based upon the fact that the court of appeals is required by law to send down its mandate within thirty days after its final judgment. State ex rel. Berkshire v. Ellison, 287 Mo. 654. No analogous situation exists in this cause, and no like reason applies. (e) Mere lapse of time alone does not preclude a petition for a common law writ of certiorari. Union Dist. Comr. v. Volke, 163 Ill. 243. (7) Since the record, as a matter of law, showed no ground for Federal jurisdiction for granting the petition for removal and staying proceedings, the filing in the Federal court of the transcript of the State court record did not give the Federal court jurisdiction, nor deprive the State court of jurisdiction, nor affect the situation as to jurisdiction in the least. Iowa Cent. Ry. Co. v. Bacon, 236 U.S. 305; Southern Ry. Co. v. Lloyd, 239 U.S. 496. Nor would action in the cause by the Federal court affect the question of jurisdiction unless it constituted an express decision that the Federal court acquired jurisdiction and that the State court had lost jurisdiction. Iowa Cent. Ry. Co. v. Bacon, 236 U.S. 305.

W. E. Moser and Marsalek, Stahlhuth & Godfrey for respondents.

(1) Relator was guilty of laches and unreasonable delay in applying for the writ, and on that account the court should exercise its discretion to refuse it. Relator allowed four months to elapse, after the order of removal was entered below, before applying for the present writ, although he knew the removing defendant was required to file the transcript in the Federal court within thirty days. Under such circumstances, his laches and unreasonable delay should bar him from maintaining this proceeding. State ex rel. v. Ellison, 287 Mo. 654; State ex rel. v. Gibson, 187 Mo. 536; State ex rel. v. Hogan, 267 S.W. 619; Sec. 29, Fed. Jud. Code (Act Mar. 3, 1911, U.S. Comp. Stat. 1918, sec. 1011); Sec. 39, Fed. Jud. Code (Act Mar. 3, 1911, U.S. Comp. Stat. 1918, Sec. 1021). The writ of certiorari is purely discretionary. In re Saline County, 45 Mo. 52; State ex rel. v. Henderson, 160 Mo. 208; State ex rel. v. Broaddus, 245 Mo. 123; State ex rel. v. Hall, 282 Mo. 425. (2) The rule of comity should preclude the State courts from attempting to retake jurisdiction of this cause at this late date. State ex rel. v. Reynolds, 209 Mo. 161; Mishawaka Mfg. Co. v. Powell, 98 Mo.App. 530; Kelly v. Railroad, 122 F. 292; Abeel v. Culberson, 56 F. 329; Fisk v. Union Pac. Ry. Co., Fed. Cas. No. 4827; Ex parte Chetwood, 165 U.S. 460; Boston & M. Railroad v. Niles, 218 F. 946; 15 C. J. 1183. And thus avoid a conflict of jurisdiction. C. & O. Railroad v. McCabe, 213 U.S. 222. (3) No error was committed in sustaining the petition for removal, for the reason that plaintiff's petition stated no cause of action against defendant Carlson. O'Neil v. Young, 58 Mo.App. 635; Bissill v. Rodin, 34 Mo. 63; Harriman v. Stowe, 57 Mo. 93; Steinhauser v. Spraul, 127 Mo. 541; Kelly v. Railroad, 122 F. 286; Kelly v. Robinson 262 F. 695; Bell v. Josselyn, 3 Gray (Mass.) 309; Albro v. Jaquith, 4 Gray (Mass.) 99; Schiller v. Selbermintz, 98 N.Y.S. 230; Murray v. Usher, 117 N.Y. 542; Kimbrough v. Boswell, 119 Ga. 201; Hill v. Caverly, 7 N.H. 215; Paper Co. v. Dean, 123 Mass. 267; Reid v. Humber, 49 Ga. 207.

Gantt, J. All concur, except Graves, J., absent.

OPINION

GANTT

The record herein is in response to our writ of certorari, issued on the 3rd day of March, 1925, to the respondents, Hon. Victor H. Falkenhainer and Hon. John W Calhoun, as judges of the Circuit Court of the City of St. Louis. On the 19th of September, 1924, the relator filed in that court a suit against the Axelson Machine Company, a corporation, and Carl Arthur Carlson, for damages for personal injuries alleged to have been caused by the negligence of the defendants while he was in the employ of the defendant Axelson Machine Company. Service was had on the 20th of September, 1924. In his petition in that case the plaintiff states that the Axelson Machine Company was a corporation, and that the defendant Carl Arthur Carlson is and was at all times therein mentioned a resident of the city of St. Louis and State of Missouri; that on or about the 21st day of February, 1924, he was in the employ of defendant Axelson Machine Company and under the control of defendant Carlson, who was the foreman of the defendant Axelson Machine Company; that it was the plaintiff's duty to operate a machine known as a forging machine, and on said day he was directed by defendants, through defendant Carlson, to make adjustments upon the machine, and while so engaged it was necessary for him to stand in such a position with reference to the machine that it was dangerous to him if the machine was started in motion; that the machine was operated by electrical power and...