The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1902-05-27
REMA NDED TO STATE COURTS.
Tho Cass OF Luther A. rsisor vs, southern
hallway Co., Ordered by Judge Simon
ton Out Of United States Court.
Tho Decree.

SlmOntOn Remaining the case OF tIuthcr
a. Riser W. Southern Railway Com
pany, which had been taken to tho
United States Court by tho defendant,
to the State courts. The motion was
made by Mr.. Welch, OF the firm OF
Johnstone e. Welch, representing the
plaintiff, and argued by him before
Judge SimOnton. The decree is of gen
eral interest, in that it possibly obvi-
ates the demand which has been made
to have an Act passed by our Legisla-
ture to domesticate corporations OF the
charter Of the Southern Railway, in
order to prevent actions against them
being taken to the United States Courts.
Riser's suit was for damages as a re-
suit OF injuries received in II tail end
collision at Camp Torrance on the 9th
of last September. He entered suit
against the Southern Railway and the
conductor in charge Of the train upon
which he was mail clerk in the sum Of
$4,000. The defendant, the railway
company, removed the case to the Uni
ted States Supreme Court on tho ground
OF diversity Of citizenship between itself
and the plainiiif, the rail'OAd being
corporation Of Virginia and Riser a
citizen Of South Caroiina. A motion
was made in the United States Circuit
Court. to which the cusc was removed,
by Mr.. Welch, Of the tit IN Of Johnstnne
u WEIGH, to have tn" ease rrmanded
b., b,t h. ,;,,,,
against the two defendants was joint
aud no, scparablc. The defendant
resisted tn" motion on the ground that
the cause OF action against itself and
Rich, the conductor, was separable aud
not joint Judge Simonion, after hear
ing the argument pro aud con, has or
dcrcd the case rcmandcd to the State
court, holding that tho case showed
] lint cause Of mcri0D, and rs the action
was j lint, the railroad company was
not emitted u Il removal, because
Rich being Il citz n of 5 'uth Carolina,
was entitled u have his case tried in
the State courts.
The fnl!Owii,g il
JUDGE SIMONTONS DECREE.
This caAc comes up on Il motion to re-
mnnd the cause which had been re-
moved from the State Court by the
Southern Railway Company, tn the
ground that under the Dlradiugs, Il
Srpara''lr controversy exists against 1t.
In discnssl. z this question we have no
il -
nor can we be controlled by an opinion
rs to the necessary result il the case
goes to trial IT is question Of
pleading. Chesapeake Il Ohio Ry. co.
~. Dixon, l78 L S. l35.
Does the complaint set up Joint or
several cause Of action? "Thc cause OF
actlon is the SUI ject matter OF the con-
trovurey and that is for all the purposes
OF the suit Whatever the plaintiff de-
clarrs it to hc in the pltadings. (Pow-
crs ~. {. X. .. Ry. l89 U. S 97). 1t
may hc that the p.aintiif on the trial
may be unable TO establish the Joint
cause Of action. 1t may be that his
proof may show that one Of the defeud-
ants is not guilty Of the tort alleged
and the other solely guilty. Perhaps Il
demurrer TO the complaint on this
ground may be sustained. "Ifthe COM
pluint should be so construed the cues
tion would still remain whether the
cause of action was not entire as the
case stood and the objection Of the diff
ference in tn" character OF the liability
matter Of dcfcusc which might force
an cleo ion or defeat the action as to
onc of the parties Chesapeake &
Ohio R>. Co. ys. Dixon, l79U 8. D. l39.
In Az action OF tort the cause Of action
is whatever the plaiutitf declares it to
be IN his pleading. Matters Of defence
cannot be availcd of as ground for re-
mOval.
The complaint is against the South
ern Railway Company and Marion Rich,
one OF its conductors. The plaintiff, a
mail clerk on the train Of the Southern
hallway Company, managed by Rich
the conductor, WAS injured In COLI
is0n and he brings this action against
both of the defendants. charging that
he WAS injured in the collision which
OF the co-detcndants.' He sets out in
his complaint that the Immediate cause
OF the collision WAS the failure of Rich
| the conductor, to observe certain rules
and regulations Of the company, and
that this failure WAS due 10 the "join,