Young v. Southern Pac. Co., 173.

• Decision Date: 01 November 1926
• Docket Number: No. 173.,173.
• Parties: YOUNG et al. v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Second Circuit

15 F.2d 280 (1926)

YOUNG et al. v. SOUTHERN PAC. CO.

No. 173.

Circuit Court of Appeals, Second Circuit.

November 1, 1926.

Dudley F. Phelps and Frank M. Swacker, both of New York City, for appellants.

Humes, Buck & Smith, of New York City (Gordon M. Buck, of New York City, and John R. Bartels, of Brooklyn, N. Y., of counsel), for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

To a preliminary suggestion of respondent that the law does not permit this appeal, we cannot accede. Admittedly no appeal lies from an order of remand, because Judicial Code, § 28 (Comp. St. § 1010), specifically forbids one, and none from an order refusing remand, because it is not final under Judicial Code, § 128 (Comp. St. § 1120). Since no motion to remand was made herein, it is urged that this appeal from an injunction, which only enforces a removal of assumed validity, is an indirect way of appealing from a refusal to remand.

There is some force in this, for plainly the Supreme Court has vigorously disapproved of attempted indirect review of removal proceedings. In re Pennsylvania Co., 137 U. S. 451, 11 S. Ct. 141, 34 L. Ed. 738; Pacific, etc., Co. v. Oregon, etc., 241 U. S. 440, 36 S. Ct. 637, 60 L. Ed. 1084. And this appeal cannot be decided without passing on the validity of this removal, for, if removal was unlawful, so was the injunction. On the other hand, there was a "hearing in the District Court," which resulted in an "interlocutory order or decree," and by that order "an injunction is granted," and under such circumstances Judicial Code, § 129 (Comp. St. § 1121), specifically grants an appeal. Quite probably this particular kind of appeal was not foreseen, but it is in terms covered, and we think the statute controls.

The objection to removal, which has been argued as if this were a motion to remand, is (1) that no separable controversy exists because a "joint" suit was brought; and (2) the power to remove a separable controversy exists only when there is a plurality of defendants. In the sense that this complaint shows a mechanical joinder in one pleading of several causes of action, the pleading is joint. But each cause of action is single, and just as singularly the property of one plaintiff, as it would have been had such plaintiff sued singly.

This union of causes is of exactly the same kind as has long been common in admiralty, where the members of a crew may unite in one libel to recover their several wages. No one has ever supposed that any joint cause of action was created by such joinder. Nor is this a class suit; there has been one such proceeding, i. e., Southern Pacific Co. v. Bogert, supra; and whether there could be a second, under Supreme Tribe v. Cauble, 255 U. S. 356, 41 S. Ct. 338, 65 L. Ed. 673, need not be asked, for this suit does not pretend to be like the Bogert suit.

Further, the quoted portion of the New York Practice Act does not pretend to make joint causes of action previously separate and single. It permits a joinder only for convenience of trial, and if such union does not promote convenience severance will occur when and as often as convenience dictates. Therefore we find nothing in the form of pleading or nature of the 16 causes of action set forth to prevent a separation of controversies.

But, if it were shown that the Legislature of New York intended by this legislation to make something called a joint cause of action by permitting separate causes belonging to separate individuals to be united in one complaint, then such joinder cannot operate to destroy the jurisdiction of the courts of the United States over such of the separate controversies incorporated in one complaint as exist between citizens of different states. It is for Congress alone, under the Constitution, to declare that jurisdiction. Thus upon reason and authority we conclude that the causes of action removed were not joint.

As to the contention that section 28 means that to remove a severable controversy there must be a plurality of defendants, we do not think it necessary to deal with...