Veariel v. United Engineering & Foundry Co.

• Decision Date: 27 March 1912
• Docket Number: 8,190.
• Citation: 197 F. 877
• Parties: VEARIEL v. UNITED ENGINEERING & FOUNDRY CO.
• Court: U.S. District Court — Northern District of Ohio

197 F. 877

VEARIEL v. UNITED ENGINEERING & FOUNDRY CO.

No. 8,190.

United States District Court, N.D. Ohio, Eastern Division.

March 27, 1912

W. S Anderson & Son and E. H. Moore, both of Youngstown, Ohio, for plaintiff.

Hine Kennedy & Manchester, of Youngstown, Ohio, for defendant.

DAY District Judge.

This matter arises on motion to remand by the plaintiff. This motion asks this court to remand this case to the court of common pleas. The sole reason relied upon, although others are expressed in the motion, is this: That the action is brought and is pending against two defendants jointly upon a joint cause of action, and one of them is a resident and citizen of Mahoning county, Ohio, and the controversy is not separable, as appears from the face of the petition, and that said cause was improperly removed into this court.

It appears that the United Engineering & Foundry Company is a citizen and resident of the state of Pennsylvania, and that Clyde Morris is a citizen of Mahoning county, Ohio, and that the plaintiff is a citizen and resident of the state of Ohio that the action was commenced in the common pleas court of Mahoning county by the plaintiff against the United Engineering & Foundry Company alone, on the 29th day of May 1908.

This case was removed to the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio in April, 1911. The same was voluntarily dismissed by the plaintiff. Whereupon the present action was immediately brought in the common pleas court of Mahoning county, and subsequently removed by the United Engineering & Foundry Company. The petition for removal recites the fact that the joinder of the defendant Clyde Morris as a party defendant was made merely for the purpose of defeating petitioner's right of removal, and that no cause of action exists as against him.

Questions of removal have been very frequently considered by the Supreme Court of the United States in a number of recent decisions. The latest one is the case of Southern Railroad Co. v. Miller, 217 U.S. 209, 30 Sup.Ct. 450, 54 L.Ed. 732. That case establishes the doctrine that, for the purpose of determining the removability of a cause, the case must be deemed to be such as the plaintiff has made it in good faith in his pleadings. Now it appears from an examination of the transcript that, when the case was filed in the common pleas court of Mahoning county, it was demurred...