Yarnell v. Felton

• Decision Date: 12 June 1900
• Citation: 104 F. 161
• Parties: YARNELL v. FELTON et al.
• Court: U.S. District Court — Eastern District of Tennessee

104 F. 161

YARNELL v. FELTON et al.

United States Circuit Court, E.D. Tennessee, Southern Division.

June 12, 1900

W. T Murray, for plaintiff.

Head &amp Anderson, for defendant.

CLARK District Judge.

This case is not before the court on motion to remand to the state court. The action is against the Cincinnati, New Orleans &amp Texas Pacific Railway Company, a corporation organized under the laws of the state of Ohio, and defendant Felton, as receiver, appointed by the circuit court of the United States for the Southern district of Ohio. The action is to recover damages, presumably for personal injury resulting from negligence, although the declaration had not been filed at the time of the order of removal. The petition for removal was on behalf of Felton, the receiver, alone. The jurisdiction of this court is objected to-- First, upon the ground that the application for removal was not made at or before the time within which the defendant is required to plead by general statute of the state upon the subject; and second, upon the ground that one of the two defendants does not join in the application for removal.

For the defendant it is insisted that by a general rule of practice adopted by the state circuit court under statutory authority the time in which the pleadings may be filed was extended beyond the date fixed by general statute, which would apply only in the absence of a regular rule of practice established by the state circuit court. The further contention by the defendant is that it is not necessary, under Act Cong. 1887-88, for a co-defendant or defendants to unite in the application for removal. The rule of practice adopted by the state circuit court extending the time for filing a declaration or plea, if it were effective to extend the time in which to apply for removal, is no part of the record, and this court cannot judicially know such a rule. Harris v. Burris, 1 Tenn.Cas. 80. But the omission to prove the rule in the court below, and incorporate the same in a bill of exceptions, does not change the result in the case at bar. The removal in this case was applied for on the sole ground of diverse citizenship. But the application for removal is on behalf of only one of the two defendants sued. It should be remarked that it is not insisted, and, indeed, could not be, that there is in the suit a separable controversy. Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup.Ct. 203, 33 L.Ed. 473; Torrence v. Shedd, 144 U.S. 527, 12 Sup.Ct. 726, 36 L.Ed. 528. Under the various acts of congress for the removal of causes on the sole ground of diverse citizenship it has been uniformly held that, where there is a plurality of plaintiffs or defendants, every necessary party on the one side of the controversy must be a citizen of a different state from every necessary party on the other side of such controversy. Gage v. Carraher, 154 U.S. 656, 14 Sup.Ct. 1190, 25 L.Ed. 989; Merchants' Cotton Press & Storage Co. v. Insurance Co. of North America, 151 U.S. 368, 14 Sup.Ct. 367, 38 L.Ed. 195; Hanrick v. Hanrick, 153 U.S. 192, 14 Sup.Ct. 835, 38 L.Ed. 685; California v. Southern Pac. Co., 157 U.S. 260, 15 Sup.Ct. 591, 39 L.Ed. 683; 18 Enc.Pl.& Prac. 193, and cases there cited.

Under removal acts prior to that of 1875 as well as under that act, the rule was that, where diversity of citizenship has relied on as ground for removal, it was necessary for all defendants brought before the court by service of process to unite in the petition or application for removal. Hanrick v. Hanrick, 153 U.S. 195, 14 Sup.Ct. 835, 38 L.Ed. 685; Wilson v. Oswego Tp., 151 U.S. 63, 14 Sup.Ct. 259, 38 L.Ed. 70; Fletcher v. Hamlet, 116 U.S. 408, 6 Sup.Ct. 426, 29 L.Ed. 679; California v. Southern Pac. Co., 157 U.S. 260, 15 Sup.Ct. 591, 39 L.Ed. 683.

And it is not to be seriously doubted that it is necessary for all defendants duly served to join in the application to remove under the act of 1887-88, although the question is one upon which there have been conflicting decisions in the circuit courts, and the question was reserved in Hanrick v Hanrick, 153 U.S. 197, 14 Sup.Ct. 835, 38 L.Ed. 685, and again in California v. Southern Pac. Co., 157 U.S. 260, 15 Sup.Ct. 591, 39 L.Ed. 683. Smelting Co. v. Cowenhoven (C.C.) 41 F. 450, and Thompson v. Railway Co. (C.C.) 60 F. 773, are cases supporting the view that it is necessary, in the absence of a separable controversy, for all material defendants before the court to...