Louisville & Nashville R. Co. v. Wangelin - 132 U.S. 599 (1890)
U.S. Supreme Court
Louisville & Nashville R. Co. v. Wangelin, 132 U.S. 599 (1890)
Louisville and Nashville Railroad Company v. Wangelin
Submitted December 19, 1889
Decided January 6, 1890
132 U.S. 599
Under the Act of March 3, 1875, c. 137, § 2, one of two corporations sued jointly in a state court for a tort, although pleading severally, cannot remove the case into the circuit court of the United States upon the ground that there is a separable controversy between it and the plaintiff because the other corporation was not in existence at the time of the tort sued for -- without alleging and proving that the two corporations were wrongfully made joint defendants for the purpose of preventing a removal into the federal court.
The original action was trespass, brought in a court of the Illinois on May 10, 1883, by Lucinda Wangelin, a citizen of Illinois, against the Louisville and Nashville Railroad Company, a corporation of Kentucky, and the Southeast and St. Louis Railway Company, a corporation of Illinois, for breaking and entering her close and tearing up and carrying away a railroad switch, and thereby destroying the connection between a coal mine of the plaintiff and the St. Louis and Southeastern Railway and injuring the value of the mine, to her damage in the sum of $6,000. The defendant corporations, after being duly served with process, severally pleaded not guilty.
The case was removed into the circuit court of the United States upon a petition of the Louisville and Nashville Railroad Company, alleging that there was a separate controversy
between it and the plaintiff which could be fully determined between them, and specifically alleging that the St. Louis and Southeastern Railway Company, an Illinois corporation, built and owned the railway and the switch mentioned in the declaration in 1870, and operated the railway until November 1, 1874; that thenceforth that railway was held and operated by a receiver appointed in a suit to foreclose a mortgage from that company until January 1, 1880; then by the Nashville, Chattanooga and St. Louis Railway Company under an assignment of that lease until January 27, 1881; and on November 16, 1880, was sold under a decree of foreclosure to purchasers for the Southeast and St. Louis Railway Company, and by such purchasers conveyed on January 17, 1881, to that company; that the Southeast and St. Louis Railway Company was incorporated under the law of Illinois on November 12, 1880, and not before; that the supposed trespasses alleged in the declaration were committed, if at all, in August, 1880; that at that time,
"the defendant, the Southeast and St. Louis Railway Company, had no corporate or legal existence, and no existence in fact, had no stockholders, officers, agents, employees, or servants, and had taken no steps whatever to become a corporation, and was not in any way acting as a corporation or otherwise;"
that that company never came into possession of that railway until January 17, 1881, when it entered into a contract with the Louisville and Nashville Railroad Company under which this company had since operated that railway, and that, at the time of the supposed trespasses, this company was in the sole and exclusive possession of that railway, operating it under the aforesaid assignment of lease.
Annexed to the petition for removal was an affidavit of the vice-president of the Louisville and Nashville Railroad Company to the truth of its allegations.
In the circuit court of the United States, the Louisville and Nashville Railroad Company, by leave of the court, filed additional pleas setting up, among other things, the matters alleged in the petition for removal.
Upon a motion of the plaintiff to remand the cause to the state court "for reasons apparent upon the face of the record," that court, on April 7, 1886, ordered it to be remanded, and on April 9, 1886, the Louisville and Nashville Railroad Company sued out this writ of error.