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
Page 132 U. S. 600
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.
Page 132 U. S. 601
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.
MR. JUSTICE GRAY, after stating the facts as above, delivered
the opinion of the Court.
It has been often decided that an action brought in a state
court against two jointly for a tort cannot be removed by either of
them into the circuit court of the United States under the Act of
March 3, 1875, c. 137, § 2, upon the ground of a separable
controversy between the plaintiff and himself, although the
defendants have pleaded severally, and the plaintiff might have
brought the action against either alone. 18 Stat. 471;
Pirie v.
Tvedt, 115 U. S. 41;
Sloane v. Anderson, 117 U. S. 275;
Plymouth Co. v. Amador & Sacramento Co., 118 U.
S. 264;
Thorn Wire Hedge Co. v. Fuller,
122 U. S. 535.
It is equally well settled that in any case, the question
whether there is a separable controversy which will warrant a
removal is to be determined by the condition of the record in the
state court at the time of the filing of the petition for removal,
independently of the allegations in that petition, or in the
affidavit of the petitioner, unless the petitioner both alleges and
proves that the defendants were wrongfully made joint defendants
for the purpose of preventing a removal into the federal court.
Page 132 U. S. 602
In
Plymouth Co. v. Amador & Sacramento Co., above
cited, a suit by a canal company against a mining corporation and
its agents for polluting a stream of water belonging to the
plaintiff was held to have been rightly remanded to the state court
in which it had been commenced although the corporation's petition
for removal alleged that it was the only real defendant and that
the other defendants were nominal parties only, and were sued for
the purpose of preventing the corporation from removing the cause
into the circuit court of the United States. Chief Justice Waite,
in delivering judgment, said:
"It is possible also that the company may be guilty and the
other defendants not guilty, but the plaintiff, in its complaint,
says they are all guilty, and that presents the cause of action to
be tried. Each party defends for himself, but, until his defense is
made out, the case stands against him, and the rights of all must
be governed accordingly. Under these circumstances, the averments
in the petition that the defendants were wrongfully made [parties]
to avoid a removal can be of no avail in the circuit court upon a
motion to remand until they are proven, and that, so far as the
present record discloses, was not attempted. The affirmative of
this issue was on the petitioning defendant. That corporation was
the moving party, and was bound to make out its case."
118 U.S.
118 U. S.
270-271.
In
Little v. Giles, 118 U. S. 596,
where a bill in equity charged the defendants jointly with having
fraudulently deprived the plaintiff of her property, MR. JUSTICE
BRADLEY, delivering the opinion of the Court, said that one of the
defendants
"could not, by merely making contrary averments in his petition
for removal and setting up a case inconsistent consistent with the
allegations of the bill, segregate himself from the other
defendants, and thus entitle himself to remove the case into the
United States court."
118 U.S.
118 U. S.
600-601.
So in
Eastern Tennessee Railroad v. Grayson,
119 U. S. 240,
119 U. S. 244,
in a suit in equity against two corporations, the question was
whether there was a separable controversy between one of them and
the plaintiff which would warrant a removal into the circuit court
of the United States, and it was said by
Page 132 U. S. 603
Chief Justice Waite, and adjudged by this Court, that the
allegations of the bill must, for the purposes of that inquiry, be
taken as confessed. To the same effect is
Graves v.
Corbin, just decided,
ante, 132 U. S. 571,
132 U. S.
585.
In the case at bar, the declaration charged two corporations
with having jointly trespassed on the plaintiff's land. Whether
they had done so or not was a question to be decided at the trial,
and it is not contended, and could not be, in the face of the
decisions already cited, that the record of the state court, as it
stood at the time of the filing of the petition for removal, showed
a separable controversy between the plaintiff and either
defendant.
The argument in support of the jurisdiction of the federal court
is that the Louisville and Nashville Railroad Company was the only
real defendant, because at the time of the trespass complained of,
the other defendant was not in existence. But this was a matter
affecting the merits of the case, and one which the plaintiff was
entitled to deny and disprove at the trial upon the issues joined
by the pleadings. Both the defendants were sued and served as
corporations, and pleaded as such, in the state court, and it is
not denied that each of them was a corporation when the action was
brought. The question whether one of them was in existence as a
corporation at the time of the alleged trespass did not affect the
question whether it could be now sued, but the question of its
liability in the action; in other words, not the jurisdiction, but
the merits, to be determined when the case came to trial. It could
not be tried and determined in advance as incidental to a petition
by a codefendant to remove the case into the circuit court of the
United States.
As to the suggestion, made in argument, that the Southeast and
St. Louis Railway Company was fraudulently joined as a defendant in
the state court for the purpose of depriving the Louisville and
Nashville Railroad Company of the right to remove the case into the
circuit court of the United States, it is enough to say that no
fraud was alleged in the petition for removal, or pleaded, or
offered to be proved, in the circuit court.
Judgment affirmed.
