WILLARD v. CHICAGO, B. & Q. R. CO. et al., 165 F. 181

SEAMAN, Circuit Judge (after stating the facts as above). On this writ of error the fundamental question arises, whether the trial court obtained jurisdiction of the cause, as brought from the state court, on petition and order for removal to the federal court; and such inquiry cannot be set aside to examine the contentions upon the merits, in reference to the direction of a verdict in favor of each defendant, at the conclusion of the plaintiff's testimony.

The case was removed under a declaration in trespass, which distinctly charges the two defendant corporations with joint negligence and joint liability, in causing the death of the intestate; and on petition of one of the defendants, as a foreign corporation, averring that it was the lessee of the other defendant (Illinois corporation) in the exclusive use and operation of the railroad and alone liable for the alleged injury, if liability arose, and that the resident corporation “was fraudulently and improperly joined as a party defendant.” With no evidence of record in the state court, aside from these pleadings, we are of opinion that jurisdiction for trial of the controversy as one “wholly between citizens of different states,” within the removal act of March 3, 1875, c. 137, 18 Stat. 470 (U.

S. Comp. St. 1901, p. 507), and amendments, was not acquired by the trial court. Jurisdiction of such cases in the federal court is strictly limited to the statutory ground, and rests solely on the state of facts and controversy of record, as brought from the court of original cognizance, so that the rule is inflexible that acquiescence of the parties (M., C. & L. M. Ry. Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510, 28 L.

Ed. 462), failure to press motion to remand, or other proceedings in the federal court, after removal, are without force to enlarge the statutory authority of the federal court in causes so brought. Alabama Southern Ry. v. Thompson, 200 U. S. 206, 213, 26 Sup. Ct. 161, 50 L. Ed. 441 and cases reviewed; Offner v. Chicago & E. R. Co., 148 Fed. 201, 202, 78 C. C. A. 359.

The right of the plaintiff is indisputable to sue the defendants in the state court — averring their joint liability, if so advised — and to have adjudication upon such claim in that forum, unless due cause for removal to the federal court is there established; and such right is neither lost by an unauthorized removal, nor abandoned by the plaintiff’s procedure thereafter in the federal court, through amended declaration or otherwise, to make the best of the condition thus arising.

Whether removal is ordered or denied in the state court does not settle the subsequent jurisdiction, which rests on the state of facts there exhibited and not upon the ruling of the court; with federal cause for removal established by the petitioner, jurisdiction is transferred ipso facto, while failing such evidence jurisdiction remains in the state court, irrespective of auy order there entered.

The cause presented in the state court by the declaration was joint, expressly charging joint negligence and liability — plainly tendering no issue of several negligence, and not provable for several liability — so that the controversy was not removable on such election of plea, in the absence of unmistakable proof of bad faith in the joinder, as a fraud upon the court and parties.

In reference to the averment of fraudulent joinder, contained in the petition for removal, it is sufficient to remark that no facts are stated in its support, and the mere deduction or legal conclusion of the pleader so stated, under the well-settled rules of pleading (Fogg v. Blair, 139 U. S. 118, 127, 11 Sup. Ct. 176, 35 A. Ed. 104), is without force unless proven.

This averment, however, is not only unsupported by facts, but the good faith of the plaintiff, in such joinder of the lessor corporation, is fully vindicated by the conceded fact of an established rule in Illinois which authorizes joinder and joint recovery, tinder such circumstances, in the state forum. See Chicago & G. T. Ry. Co. v. Hart, 209 Ill. 414, 70 N. E. 654, 66 L. R. A. 75.

That the general doctrine is otherwise — that: joint recovery against a lessor, under the conditions stated in the petition, is denied in the federal courts, by numerous authorities cited in opposition — -cannot debar the plaintiff of his right of action (and such benefit as the local rule may afford) in the state court, nor authorize removal of his suit under the federal statutes, as above construed by the ultimate tribunal.

For want of jurisdiction in the trial court, therefore, under the removal proceedings, the judgment is reversed, and the cause remanded to the Circuit Court of the United States for the Northern District of Illinois, with direction to remand the same to the city court of Aurora, Kane county, Ill.