Baber v. Southern Ry.

January 14, 1907. The opinion of the Court was delivered by This is an appeal from an order refusing the petition of the defendant Southern Railway Company to remove the case to the Federal Court.

The grounds upon which the petitioner asked that the case be removed are as follows:

"That the controversy herein is between citizens of different States, to wit: between the plaintiff, who is and was at the time of the commencement of this action a resident and citizen of the State of South Carolina, and this defendant, who is and was at the time of the commencement of this action a resident and citizen of the State of Virginia, being a corporation duly chartered, organized and doing business under and by virtue of the laws of the said State of Virginia, and the defendant John Logan, who is not a citizen of the State of South Carolina, but, as your petitioner is informed and believes, is a citizen of either the State of North Carolina or of Georgia, your petitioner not being certain which.

"That, as your petitioner is informed and believes, the controversy set out in the complaint is a separable one, being wholly between the plaintiff and your petitioner, and that the defendant John Logan has been joined as a co-defendant for the purpose of preventing the removal of this cause from the State to the Federal Court, and not for the purpose of obtaining judgment against the said John Logan, or of attempting to enforce or collect same if one should be obtained, and your petitioner on information and belief avers that the said John Logan is a sham and pretensive defendant and is not a real defendant in this action."

The complaint (which will be reported) alleges a joint tort. Carson v. Railway, 68 S.C. 55, 46 S.E., 525. It was a fatal defect, therefore, when only one of the alleged non-resident defendants filed a petition for removal. Chicago Ry. Co. v. Martin, 178 U.S. 245. This disposes of the first of said grounds.

The second ground has so recently been before this Court for adjudication, that we only deem it necessary to cite the case of Able v. Ry., 73 S.C. 173, to show that it was properly overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.