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It is worthy of mention that since the decision of the Supreme Court in the Alabama Southern Case, supra, this court has been called upon to consider a large number of motions to remand causes that have been removed from the courts of the state. The argument before me has been that the federal courts ought to exercise very great circumspection wherever it is charged that an attempt is being made to join a servant with the master for the purpose of defeating federal jurisdiction. To this I assent. Indeed, where an action is brought by a resident against a nonresident corporation and a subordinate servant who is a citizen of the state, and it is made to appear that the servant is not responsible financially, it is difficult to avoid a suspicion that the real and only object of joining the two in the suit is to evade the jurisdiction of the federal court. A failure to serve summons is also a circumstance which is very suspicious. But, on the other hand, the plaintiff in such cases has a right to go into the state courts to sue those whom he alleges injured him, and unless the nonresident defendant can bring itself within the provisions of the act of Congress, giving it a right of removal to the federal courts, it must defend in the state courts. So, if the nonresident would rely upon a fraudulent joinder as a basis for removal, it must present facts from which fraud is clearly inferable; and such facts must present an issue which, if sustained, justifies the federal court in holding that plaintiff is trying wrongfully to deprive the nonresident defendant of the protection of its rights, as conferred by the laws of Congress.
It is impossible to lay down any exact line that will mark a distinction between a wrongful and a justifiable purpose in seeking the one jurisdiction rather than the other. The showing in each case must guide the court. Where it is strong enough to impress the mind of the judge with the belief that the plaintiff is improperly suing, and that he ought not and cannot prevail in the state court as against the two defendants, and that the purpose of joinder is to defeat the jurisdiction of the federal court, the federal court should not hesitate to retain jurisdiction; but where plaintiff is following a legal right, and states a good cause of action against joint tort-feasors, and appears to be trying to bring both defendants before the state court, and where there is substantially nothing to impugn his good faith, except the alleged fact that the resident defendant is without means to respond in judgment in case it is had, and that on the merits the essential facts of the controversy are different from those alleged, then in my opinion, no real issue of fraud is proven, so that the federal court can find for petitioner. My understanding of the Alabama Southern Case, supra, is in accord with what I have just stated. Justice Day there said:
"The fact that by answer the defendant may show that the liability is several cannot change the character of the case made by the plaintiff in his pleading, so as to affect the right of removal. It is to be remembered that we are not now dealing with joinders, which are shown by the petition for removal, or otherwise, to be attempts to sue in the state courts with a view to defeat federal jurisdiction. In such cases entirely different questions arise, and the federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the federal courts of the protection of their rights in those tribunals."
The doctrine of that case is that the federal courts should act so as to defeat attempts wrongfully to deprive parties entitled to litigate in the federal courts to the protection of their rights. There is however always involved in this doctrine the element of a wrongful depriving, not any depriving, as not every depriving of the federal court is improper; and unless it is improper or wrongful, the conclusion is irresistible that the federal court must remand, for the legal right existing to have the action tried in the courts of the state, the federal courts must respect that right.
Thus far the case has been regarded without consideration of the defendant's application to amend, and its effect upon the question of jurisdiction. As appears in the statement of facts included in this opinion, the nonresident defendant asks this court for leave to amend the petition so as to set forth that the defendant Jackson, whom it stated in its petition was a citizen of Montana, is really a citizen of Minnesota, and was such when this action was commenced. If such amendment is allowable, we have the case of a plaintiff, citizen of Montana, suing two nonresident defendants, one a citizen of West Virginia, the other of Minnesota. As we shall presently see, whether under such a state of facts one defendant could properly remove the case, is not now necessary to be passed upon, and decision upon that precise point is not made now. Let me say in passing, that Judge Sanborn has positively decided that removal can not be had in such a case (Thompson v. Chicago, St. P. & K. C. R. Co. [C. C.] 60 Fed. 773); so did Judge Brewer while he was a circuit judge (W. U. Tel. Co. v. Brown [C. C.] 32 Fed. 337); and such is the law as stated by Moon on Removal of Causes, § 150. But let me assume for the sake of the argument, without a concession of the accuracy of the proposition, that the controversy not being separable, failure of one of the defendants to join in the petition of removal is not fatal to the right of removal, and still we are confronted with this question, which it is necessary to decide, namely: Has the federal court authority to permit the defendant company to amend its petition by showing that its codefendant was not a citizen of Montana, but was a citizen of Minnesota? Inasmuch as the original petition for removal alleged that defendant Jackson was and is a citizen of Montana, the contemplated change of averment is a material conflict with what was laid before the state court. The two statements cannot be true-one or the other must fall.
If the fact is that Jackson was a resident of Montana, as petitioning defendant alleged in his petition to the state court, the jurisdiction of that court was complete and the allegations of fraud being inadequate, no cause for removal is shown; while, if Jackson was a citizen of Minnesota, we will assume removal could have been had without regard to questions of fraud. Thus we see that the proposed amendment is not one making more certain or specific a statement made in the petition filed in the state court, but defectively made, or to state more fully and distinctly facts stated, upon which ground of removal rests, but is a request to permit an amendment which is of substance. Indeed it is asking the federal court to allow an amendment which may bring the case within the jurisdiction of the federal court upon
the existence of a ground not presented in any way to the state court on motion for removal, and but for which the cause was not removable. To permit the amendment would be to retain jurisdiction of a cause removed without a showing having been made in the state court of jurisdictional facts upon which the right of removal existed. This would be directly against the great weight of authority, and the strength of the reasoning underlying the statute which gives the right of removal in certain cases.
Mindful of the fundamental principle that causes can be removed from the state courts to the Circuit Courts of the United States only in such cases as the statutes of the United States prescribe, and that it is for the petitioner in the state court to show to that court in the first instance that the case is one which he is entitled to have removed, it is at once apparent that a showing of cause for removal must be made to the court which first has the case, and which need not surrender its control until facts which compel it to do so are made to appear upon the record of its proceedings. In the absence of such a showing in the state court, the question is a fundamentally jurisdictional one, and no appeal to the discretion of the federal court can have consideration, for discretion cannot confer jurisdiction to retain the case, if it does not exist. The courts of the state have cognizance of suits brought by citizens of the state against citizens of other states. In the extension of the power of the federal courts to suits instituted by citizens of the state against citizens of other states, there was no divestiture of the jurisdiction of the courts of the state to hear and determine cases brought in the state courts. The right of removal by a defendant may be invoked, but of itself that right in no way lessens the authority of the state court; that is to say, unless motion is had in the state court, the existence of the right of removal in no way restricts the power of the state courts to proceed with the case, and to bring the parties before it. Plaquemines Fruit Company v. Henderson, 170 U. S. 511, 18 Sup. Ct. 685, 42 L. Ed. 1126.
As was held in Manley v. Olney (C. C.) 32 Fed. 708, the right of removal is not strictly a constitutional one, but is a privilege to have the case tried in some other than the state tribunals. "The right of removal is statutory," said Chief Justice Waite, in Insurance Company v. Pechner, 95 U. S. 183, 24 L. Ed. 427. "Before a party can avail himself of it, he must show upon the record that his is a case which comes within the provisions of the statute."
In harmony with these general views, the federal courts have recognized that the statutes of removal should be construed not in a way to authorize the exercise of jurisdiction where the question is doubtful, but rather to refuse to keep a case where the jurisdiction is seriously disputable. "It is the safer and wiser course to send a cause for trial to a court of unquestionable jurisdiction, rather than retain it here, and go through all the forms of trial when the jurisdiction is doubtful." Fitzgerald v. Missouri Pac. Railway Co. (C. C.) 45 Fed. 812. From many decisions bearing upon the question of jurisdiction where amendment is sought after removal, I have collected a few which are pertinent to the present case. In Fitzgerald v. Missouri Pacific Rail
way Company, supra, Judge Caldwell held that no amendment could be made in the circuit court setting up grounds for removal, which were not presented to the state court on the motion to remand.
In Grand Trunk Railway Company v. Twitchell, 59 Fed. 727, 8 C. C. A. 237, the Circuit Court of Appeals for the First Circuit laid down this proposition:
"That there can be jurisdiction in the circuit court only when, at the time of the application for removal, the record shows on its face that the action is removable, and consequently that the parties cannot now be permitted to amend this record so as to show the requisite diversity of citizenship."
The court approved the decision in Crehore v. Railway Company, 131 U. S. 240, 9 Sup. Ct. 797, 33 L. Ed. 218, by saying that that case never has been doubted so far as the court was advised.
Murphy v. Payette Alluvial Gold Company (C. C.) 98 Fed. 321, was a case that arose in the Ninth circuit. The plaintiff brought the action upon several causes-one of which arose in his own favor, and four of which were assigned to him by others. The amount involved in the first cause was not sufficient to confer jurisdiction, but the sum of all the demands exceeded $2,000. A petition for removal was filed, alleging that plaintiff was a citizen of Oregon, and that defendant was a British corporation. The plaintiff had set forth the facts concerning the four assigned causes of action, and the names of the respective assignors, but the complaint and petition failed to aver what the citizenship of the assignors was. On motion to remand, application was made by defendant for leave to file an amended petition showing that the citizenship of the assignors of the assigned claims was such that the case was one for removal. Judge Gilbert cited Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. 912, 35 L. Ed. 654, to show that it must affirmatively appear that the citizenship of the assignors of the assigned claims was diverse from that of the defendant, or that they were not aliens. Passing, then, to the question of the right of assignment, he reviewed the decisions of the Supreme Court, including the case of Powers v. Railway Company, 169 U. S. 92, 18 Sup. Ct. 264, 42 L. Ed. 673. He said:
"But it is contended that inasmuch as, in fact, the citizenship of the assignors was such that the case was properly removable, their citizenship can now be shown by an amended petition filed in this court. This contention leads to the inquiry, what is the power of this court to permit amendments to the petition for removal after the cause has been docketed herein? In Crehore v. Railway Co., 131 U. S. 240, 9 Sup. Ct. 692, 33 L. Ed. 144, the right of the Circuit Court to amend the petition was denied in a cause which had been removed on the ground of diverse citizenship, on a petition which alleged the citizenship of the parties at the time when it was filed only, and not at the time of the commencement of the action. The court said: 'For the only mode provided in the act of Congress by which the jurisdiction of the state court of a controversy between citizens of different states can be devested is by presenting a petition and bond in that court showing, in connection with the record, a case that is removable. The present motion, in effect, is that such amendment of the record may be made in the Circuit Court as will show that this case might have been removed from the state court-not that, in law, it has ever been so removed.'
"In Jackson v. Allen, 132 U. S. 27, 10 Sup. Ct. 9, 33 L. Ed. 249, the court affirmed the rule of Crehore v. Railway Co.; and in Graves v. Corbin, 132 U. S. 572, 590, 10 Sup. Ct. 202, 33 L. Ed. 469, it referred to that case as one in
which it had been held 'that where a suit is entered upon the docket of a Circuit Court as removed on the ground of the diverse citizenship of the parties, and was never in law removed, no amendment of the record made in the circuit court can affect the jurisdiction of the state court, or put the case rightfully on the docket of the Circuit Court as of the date when it was so docketed.'
"In Martin's Adm'r v. Railroad Co., 151 U. S. 673, 691, 14 Sup. Ct. 540, 38 L. Ed. 318, the court defined the limit of the power of the Circuit Court to permit amendments to the petition, and said: Such amendments may be allowed when, and only when, the petition, as presented to the state court, shows upon its face sufficient ground for removal.'
"In Powers v. Railway, 169 U. S. 92, 101, 18 Sup. Ct. 267, 42 L. Ed. 676, may be found the latest expression of the views of the court upon that subject. The court there said: 'A petition for removal, when presented to the state court, becomes part of the record of that court, and must doubtless show, taken in connection with the other matters on that record, the jurisdictional facts upon which the right of removal depends, because, if those facts are not made to appear upon the record of that court, is it not bound or authorized to surrender its jurisdiction; and if it does, the Circuit Court of the United States cannot allow an amendment of the petition, but must remand the case.' The court then proceeded to say: 'But if, upon the face of the petition, and of the whole record of the state court, sufficient grounds for removal are shown, the petition may be amended in the Circuit Court of the United States, by leave of that court, by stating more fully and distinctly the facts which support those grounds.'"
In Fife et al. v. Whittell (C. C.) 102 Fed. 537, Judge Morrow denied an application made by the defendant for leave to amend a record so as to show that the defendant was a nonresident of California, saying:
"The court has no jurisdiction to allow such an amendment. Where a petition for removal in connection with the record in the cause fails to disclose grounds for removal, the docketing of the cause in the Circuit Court of the United States does not deprive the state court of jurisdiction, and the federal court has no power to grant leave to amend the petition by stating facts that show that the cause was in fact removable."
Dalton v. Milwaukee Mechanics' Insurance Company (C. C.) 118 Fed. 876, was considered on a motion to remand to the state court, and on application by the defendant for leave to file an amendment to the petition for removal. The suit there was brought by a citizen of Iowa against a citizen of Wisconsin. The defendant filed a petition for removal in the state court, alleging that the cause was a controversy which was wholly between citizens of different states; the petitioner being a citizen of Wisconsin, and plaintiff a citizen of Iowa. The transcript of removal was filed in the Circuit Court of the United States, whereupon plaintiff moved for an order remanding the case, on the ground that the circuit court had no jurisdiction, for the reason that the jurisdictional facts authorizing a removal did not appear upon the record. Thereupon defendant asked leave to amend the petition for removal, by averring that the amount in controversy exceeded the value of $2,000, exclusive of interest and costs, and that the defendant was a corporation organized and existing under the laws of Wisconsin. Judge Shiras held that the averment that the corporation was a citizen of Wisconsin was not the equivalent of the averment that it was created and existed under the laws of Wisconsin, and that jurisdiction was not shown upon the face of the record.