The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1902-05-27
REMANDED TO STATE COURTS.
The Gaze OF Inther A. Ki'er vs, Southern
kailwsy Co, Ordered ny Judge simon
ton Out of United States Court.
The Decree.

A decree has BEEN issued by Judge
Simontou remandiug the case OF Luther
A. Riser VS.. Southern Railway Com
panv. which had been taken to the
United States Court by the defendant,
to the State courts. The motion was
made by Mr.. Welch, of the firm OF
Johnstone & Welch, representing the
plaintiff, and argued by him before
Judge Simonton. The decree is OF geR-
eral interest, in that it possibly obvl-
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 re-
suit of injuries received in a 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 the ground
of diversity of citizenship between itself
and the plaintiff, the railroad being a
CORPORATION of Virginia and Riser a
citizen of South Carolina. A motion
was made in the United States Circuit
Court, to which the case was removed
by Mr.. WEIGH, of the firm OF Joh"stnne
l. WEIGH, to have the case remandeo
on the ground that the cause OF action
against the two defendants was joint
and not separable. The defendant
resisted the motion on the ground that
the cause of action against itself and
Rich. The CONDUCTOR, was separable and
not Joint. Judge Simonton, after hear
ing the argument pro and con, has or
dered the case remanded to the State
court, holding that the case showed q
! int cause of action, and as the action
was ipint, the railroad company was
not entitled tn a removal, because
Rich being d citz-n of S 'uth Carolina,
was entitled to have his case tried IN
| the State courts.
The following is
JUDGE s1MoNToN's DECREE.
This case comes up on motion to re-
mapd the cause which had been re-
| moved from the State Court by the
Southern Railway Company, on the
ground that under the pleadlngs, q
separahle controversy exists against 1t.
In discussing this question we have no
concern Win the merits of the case,
nor can we be controlled by an opinion
as to the necessary result if the case
goes to q trial 1t is a question OF
pleading. Chesapeake & Ohio Ry. 60.
vs.. Dixon, 179 U. S. l35.
Does the complaint set up a joint or
several cause of action? "The cause oil
action is the subject matter OF the con-
troversy and that is for all the purposes
of the suit whatever the plaintiff de-
clares it to be in the pleadings. (Pow'
ers vs.. Z. &. o. Ry. l69 U. S 81. it
may be that the plaintiff on the trial
NAV be unable to establish the joint
cause of action. It may be that his
proof may show that one of the defend
ants is not guilty of the tort alleged
and the other solely guilty. Perhaps a
demurrer TO the complaint on this
ground may be sustained. "It the com
plaint should be so construed the ques-
tion would still remain whether the
cause of action was not entire as the
case stood and the objection OF the diff
ference in the character of the liability
matter of defense which might force
an elecrion or defeat the action as to
one of the parties" Chesapeake &
Ohio RI. Co. VS.. Dixon, l79 U. s. p. 1S9.
In an action of tort the cause OF action
is whatever the plaintiff declares it to
be in his pleading. Matters Of defence
cannot be availed of as ground for re-
| moval.
The complaint is against the South
ern Railway Company and Marion Rich,
one of it's conductors. The plaintiff, q
mail clerk on the train of the Southern
Railway Company, managed. by Rich
the conductor, was injured in a COLI
ison and he brings this action against
both of the defendants, charging that
he was injured in the collision which
was due to ''joint and concurrent fault
of the co-defeudants." 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 to the ''ioint
and concurrent negligence, carelessness
and fault of the said defendants" In
all the paragraphs of his complaint he
charges this joint aud concurrent neg
ligepce, &C., as the cause Of action.
On ,nis be must stand or fall. He may