Clark v. American Agri. Chemical Co. , 111 S.C. 230 ( 1918 )

December 30, 1918. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained through the wrongful acts of the defendants.

The defendant, American Agricultural Chemical Company, filed a petition, bond, and affidavits for the removal of the case to the District Court of the United States for the Eastern District of South Carolina, and subsequently made a motion before his Honor, T.J. Mauldin, Circuit Judge, for an order that the case be removed, which motion was refused and the said defendant appealed. The complaint, the petition, and the exceptions will be reported.

In the case of Chicago etc. v. Whiteaker, 239 U.S. 421,36 Sup. Ct. 152, 60 L.Ed. 360, the rule in such cases is thus stated: Whether or not the complaint states a cause of action against a resident joined as codefendant with a nonresident is a matter of local law, which is not open on a writ of error from the Federal Supreme Court presenting the question whether the joinder was fraudulently made, for the purpose of preventing a removal to a Federal Court.

The motive of plaintiff in joining an impecunious railway employee as a codefendant with a nonresident railway corporation in a negligence suit is not material upon the question of the right of the latter to remove the cause to Federal Court, if such defendants are jointly liable under the local laws.

In Southern Railway Co. v. Lloyd, 239 U.S. 496,36 Sup. Ct. 210, 60 L.Ed. 402, the principle is announced that the allegations in the petition for the removal of an alleged separable controversy to a Federal Court for diverse citizenship are not sufficient where they amount simply to a traverse of the facts alleged in the plaintiff's complaint, and in that way undertakes to try the merits of a cause of action good upon its face.

The cases of Ellis v. Railway, 72 S.C. 465, 52 S.E. 228, 2 L.R.A. (N.S.) 378, and Carter Harris v. Railroad,84 S.C. 546, 66 S.E. 997, unquestionably sustain the proposition that both the American Agricultural Chemical Company and its codefendant, Benjamin L. Bradham, are liable to the plaintiff upon the face of the complaint.

Having reached this conclusion, further discussion is unnecessary.

Appeal dismissed.