# Powers v. Chesapeake & Ohio Railway Company

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United States Supreme Court
169 U.S. 92
Powers v. Chesapeake & Ohio Railway Company
This action was brought September 7, 1893, in an inferior court of the state of Kentucky, by Powers against the Chesapeake & Ohio Railway Company, as well as against Boyer, Evans, and Hickey, the conductor, engineer, and fireman of a railway train of the company, to recover damages for injuries suffered by the plaintiff from the running of the train against him by the negligence of the defendants. The summons was not served on Hickey, but was served on the other defendants.
The railway company, before its answer was required by the law of Kentucky to be filed, removed the case into the circuit court of the United States, upon a petition alleging that the matter in dispute exceeded, exclusive of interest and costs, the sum or value of $2,000; that the railway company was a citizen of the states of Virginia and West Virginia only, and the plaintiff was a citizen of the state of Kentucky; that there was in this suit a separate controversy, which could be fully determined, as between them; and that the other defendants were fraudulently and improperly joined for t e sole purpose of defeating the railway company's right of removal. In the circuit court of the United States, a transcript of the record of the proceedings in the state court was filed; and, after a hearing, a motion by the plaintiff to remand the case to the state court was sustained by an opinion filed and entered of record, which stated that the plaintiff was a citizen of Kentucky, and the railway company a citizen of Virginia, and the other defendants were admitted to be citizens of Kentucky; and held that there was no separable controversy between the railway company and the plaintiff, and the case was ordered to be remanded accordingly.
The railway company then filed in the state court a transcript of the proceedings in the circuit court of the United States, and an answer containing a demurrer, and denying the facts alleged in the original petition, and alleging that the other defendants were fellow servants of the plaintiff. A year after the first petition for removal, and when the case was called for trial before a jury in the state court, the plaintiff discontinued his action against the individual defendants. The court overruled the demurrer, and the railway company filed a second petition for removal, like the first, except in alleging that in bringing this suit Evans and Hickey were fraudulently and improperly joined as defendants for the purpose of defeating the railway company's right of removal; that, because of their joinder, the cause had been remanded to the state court; and that the action, having now been discontinued as against them, was for the first time pending against the railway company alone. The state court denied the petition for removal, and the railway company excepted to the denial. The trial proceeded in that court, resulting in a verdict and judgment for the plaintiff, and the railway company appealed to the court of appeals of the state.
At the next term of the circuit court of the United States the railway company filed a transcript of the record of the proceedings in the state court. The plaintiff moved to remand the case to the state court, upon the grounds that it was not removable under the acts of congress; that the second petition for removal was not filed within the time fixed by those acts, and that the question sought to be made by the second petition for removal had been already adjudged by the circuit court of the United States, and its former adjudication was a bar to the second proceeding for removal. The railway company (having filed affidavits showing that Boyer and Hickey were citizens of Kentucky, and that the discontinuance of the action as against the individual defendants was made by the plaintiff's attorney without their request or knowledge, and without any consideration moving from them) was permitted by the circuit court of the United States to amend its second petition for removal by substituting therein the name of Boyer for that of Evans, in correction of a clerical mistake in the petition, and by alleging that Evans was a citizen of Virginia, and Boyer and Hickey were citizens of Kentucky, and that, by reason of the fraudulent and improper joinder of them to defeat the railway company's right of removal, the plaintiff was estopped to deny that the second petition for removal was not filed within the time required by law.
The circuit court of the United States, being of opinion that the plaintiff had fraudulently joined Boyer and Hickey as defendants in order to defeat the removal of the case to that court, and was, therefore, estopped to deny that the second petition for removal was filed in time, granted the petition for removal, and denied the motion to remand. 65 Fed. 129. The plaintiff then pleaded, in abatement of the cause in the circuit court of the United States, and to the jurisdiction of that court, the proceedings in the state court in which the railway company took part after the denial of its second petition for a removal, and its appeal to the court of appeals of the state; and for the same reasons moved the court to defer all proceedings until the termination of the case in the courts of the state and in this court if the case should be brought here from the courts of Kentucky; and also moved to remand the cause to the state court. The circuit court of the United States sustained a demurrer to the plea, and denied the motions to defer and to remand.
The case was afterwards called for trial in the circuit court of the United States, and, the plaintiff insisting on his objection that the court was without jurisdiction, because the case had never been properly removed into that court, and declining for that reason to recognize the jurisdiction thereof, or to prosecute his action therein, the court, overruling all the plaintiff's objections, and being of opinion that the original petition of the plaintiff did not state a cause of action, adjudged that the action be dismissed, and rendered final judgment for the defendant.
A writ of error from this court was sued out by the plaintiff, upon the sole ground that the cause was not properly removed into the circuit court of the United States, and therefore that court was without jurisdiction. The court allowed the writ of error, and certified to this court the question so presented as a question of the jurisdiction of the circuit court, under the act of March 3, 1891, c. 517, § 5 (26 Stat. 827).
Lawrence Maxwell, Jr., for plaintiff in error.
C. B. Simrall, for defendant in error.
Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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