Thompson v. Chicago, St. P. & K. C. Ry. Co.
| Decision Date | 14 April 1894 |
| Citation | 60 F. 773 |
| Court | U.S. District Court — District of Minnesota |
| Parties | THOMPSON v. CHICAGO, ST. P. & K. C. RY. CO. et al. |
John A Lovely, for plaintiff.
H. H Field, for Chicago, M. & St. P. Ry. Co.
Daniel W. Lawler, for Chicago, St. P. & K. C. Ry. Co.
The defendant the Chicago, Milwaukee & St. Paul Railway Company moves to remand this case on the ground that one of the defendants did not join in the petition for removal. The plaintiff is a citizen of Minnesota, and he brings this action against all the defendants for negligence in so operating their trains that they collided and injured him. The Chicago, Milwaukee & St. Paul Railway Company is a corporation organized under the laws of the state of Wisconsin, the Chicago, St. Paul & Kansas City Railway Company is a corporation organized under the laws of the state of Iowa, and the Chicago Great Western Railway Company is a corporation organized under the laws of the state of Illinois. The two latter companies petitioned for the removal of this cause, but the St. Paul Company did not join in the petition. The latter company has filed a transcript of the record, and made its motion to remand this case upon proper notice, nearly two months before the first day of the next session of this court, at which a copy of the record is required to be filed by the petitioning defendants under section 3 of the act of congress of March 3, 1887, as amended by the act of August 13, 1888 (Supp. Rev. St. U.S. 613). The petitioners object that the motion is premature, and insist that the case cannot be remanded until the opening of the next term of this court. An objection of this character was sustained in Kansas City & T. Ry. Co. v. Interstate Lumber Co., 36 F. 9, but such an objection was overruled in Delbanco v. Singletary, 40 F. 177, 181, and Mills v. Newell, 41 F. 529. The rule and the reasons for it expressed in the latter cases are more satisfactory to me, and I proceed to decide the motion upon the merits.
The first clause of section 2 of the removal act of 1875 (18 Stat.
471) is similar to the second clause of section 2 of the act of 1887 (Supp. Rev. St. p. 612). The only difference between the two clauses is that under the act of 1875 it was provided that either party might remove the suit, while under the act of 1887 it is provided that the defendant or defendants being nonresidents of the state may remove it. It was well settled under this clause of the act of 1875 that a removal could not be effected unless all the parties on the same side of the controversy united in the petition, and I think there is no doubt that the same rule must be held to apply to this clause of the act of 1887. Ruckman v. Land Co., 1 Fed. 367; Smith v. McKay, 4 Fed. 353; Rogers v. Van Nortwick, 45 F. 513. It follows that, as one of the defendants in this action did not join in the petition for removal, the case was not properly removed to this court under this clause of the act of congress.
The second clause of the second section of the act of 1875 provided that,...
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...245, 20 S. Ct. 854, 44 L.Ed. 1055; Jewett v. Whitcomb, C.C., 69 F. 417; Rogers v. Van Nortwick, C.C., 45 F. 513; Thompson v. Chicago, St. P. & K. C. Ry. Co., C.C., 60 F. 773; Yarnell v. Felton, D.C., 102 F. 369; Yarnell v. Felton, D.C., 104 F. 161; State Trust Co. v. Kansas City, P. & G. R.......
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...J., remanded the case to the state court by the following order: "Motion to remand granted on authority of Thompson v. C., St. P. & K.C. Ry. Co. and C., M. & St. P. Ry. Co., 60 F. 773. So The proceedings narrated in the opinion were thereafter taken at the trial in the state court. The cour......