Gudger v. Western N. C. Railroad , 87 N.C. 325 ( 1882 )

It is a matter of moment to the parties that a correct solution be reached of the inquiry, whether upon the case presented in the pleadings the defendants are entitled to an order of removal, or suspension of further action in the cause in the superior court, since, if it ought to have been, and is not transferred to the jurisdiction of the federal court, whatever proceedings may be thereafter had in the state court, are a nullity, and the progress of the cause is arrested by law at the point when the removal was demanded.

We have therefore carefully considered the act of congress of March 1875, as interpreted by the Supreme Court of the United States in Barney v.Latham, 103 U.S. 205; Blake v. McKim, Ib., 336, and Hyde v. Reeble,104 U.S. 407, with a view to ascertain if the case made in the pleadings in the present action brings it within the scope and operation of the enactment, and entitles the defendants to an order of removal.

The action, divested of extraneous matter, is one of tort, and it object the recovery of damages sustained by the plaintiff, resulting from the negligence of the defendant company. No other person is charged with complicity in the unlawful act, if such there be, nor was it necessary for the plaintiff to pursue his remedy against all the wrong doers.

His controversy is with, and his suit is against such party as he charges in the complaint with having placed the obstruction in the public street, and no other. If then the individual non-resident defendants come in and assume a common responsibility with the other defendant, while no recovery is asked against them, how can it be (328) said that there has been constituted in the words of the statute "a controversy which is wholly between citizens of different states and which can be fully determined as between them"? that is, a declared by the court in Barney v. Latham, supra, "a controversy finally determinable as between them, without the presence of their co defendants or any of them, citizens of the same state with the plaintiff, when in fact it is exclusively upon the pleadings between the plaintiff, and the defendant originally sued, as to an imputed unlawful act of the latter, the source and ground of the claim to compensatory damages The defendants who subsequently come in and become parties, assume a common responsibility with the company, if there be any liability resting upon either, for the act, but this cannot impair the plaintiff right to seek his remedy and pursue it against the company if he choose so to do.

The wrong complained of in putting up the stake is the personal act of those who were engaged in running the proposed railroad route, and in law the act of those by whose authority and in whose service the work was done, and the plaintiff has his election to seek his redress against one or more of them alone.

It would in our opinion be a perversion of the purposes of the act, and unwarranted by its words, to permit other wrong-doers, not sought to be made liable and against whom no complaint is preferred, to come in and assume an unnecessary liability for themselves, and under this pretext to withdraw the only controversy of the plaintiff's seeking from a rightfully attaching jurisdiction of the court.

As the case stands upon the complaint, all the defendants are united in resisting a recovery against the company, and the asserted and denied right to maintain the action is the sole subject matter in contest.

A controversy between opposing parties to an action grows out of conflicting allegations in the adversary pleadings, and none is made in the complaint against the non-resident defendants (329) (voluntarily becoming parties) and no issue as to them can be eliminated therefrom.

"The suit then, as it stands in the complaint," remarks the chief justice in Hyde v. Reeble, "is in respect to a controversy between the parties as to the liabilities of the defendant on a single contract," and substituting tort for contract at the end of the sentence, the language is precisely adapted to the present case. "Neither do we think," he adds, "it (the cause) was removable under the second clause of the same section, on the ground that there was in the suit a separate controversy wholly between citizens of different states. To entitle a party to a removal under this clause, there must exist in the suit a separate and distinct cause of action in respect to which all the necessary parties on one side are citizens of different states from those on the other."

In our view the case presented is not one for removal under the act, and the application therefor was properly denied.

There is no error and this will be certified to the end that the cause proceed in the court below. The appellants will pay the costs of the appeal.

No error. Affirmed.

Cited: O'Kelly v. R. R., 89 N.C. 60; Douglas v. R. R., 106 N.C. 79;Bowley v. R. R., 110 N.C. 317.