F. W. Dewart, for plaintiff in error.

M. J. Gordon, Charles A. Murray, and W. W. Hindman, for defendants in error.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

GILBERT, Circuit Judge, after stating the case as above, .

It is assigned as error, among other assignments, that the Circuit Court overruled the motion of the plaintiff in error to remand the cause to the state court. In Alabama Great Southern Railway Co. v. Thompson, Admr. (Jan. 2, 1906) 200 U.S. 206, 26 Sup.Ct. 161, 50 L.Ed., 441, the Supreme Court reviewed its former decisions, expressed the purport of their meaning, and finally determined the doctrine that the case made in the complaint against defendants sued jointly is, in the absence of a showing of fraudulent misjoinder, determinative of the right of removal. The court first reviewed Chesapeake & Ohio R.R. Co. v. Dixon, 179 U.S. 131, 21 Sup.Ct. 67, 45 L.Ed. 121; and, after quoting therefrom, said:

'It is patent from the language just quoted from the opinion that, conceding the misjoinder of causes of action appeared on the face of the petition, the fact was not decisive of the right of the nonresident defendant to remove the action to the federal court.'

From that decision the court quoted with approval the following:

'It has often been decided that an action brought in a state court against two jointly for a tort cannot be removed by either of them into the Circuit Court of the United States, under Act March 3, 1875, c. 137, Secs. 2, 18 Stat. 470 (U.S. Comp. St. 1901, p. 509), upon the ground of a separable controversy between the plaintiff and himself, although the defendants have pleaded severally and the plaintiff might have brought an action against either alone.'

And quoting the language in the opinion of the court in Louisville & Nashville Railroad Company v. Ide, 114 U.S. 52, 5 Sup.Ct. 735, 29 L.Ed. 63, in which the Chief Justice had said, 'A defendant has no right to say that an action shall be several which a plaintiff elects to make joint,' the court proceeded to remark:

'The language is used of an action begun in the state court, and it is recognized that the plaintiff may select his own manner of bringing his action and must stand or fall by his election. If he has improperly joined causes of action, he may fall in his suit. The question may be raised by answer and the right of the defendant adjudicated, but the question of removability depends upon the state of the pleading and the record at the time of the application for removal. Wilson v. Oswego Tp., 151 U.S. 56, 66, 14 Sup.Ct. 259, 263, 38 L.Ed. 70. And it has been too frequently decided to be now questioned that the plaintiff may elect his own method of attack, and the case which he makes in his declaration, bill, or complaint, that being the only pleading in the case, is to determine the separable character of the controversy for the purpose of deciding the right of removal.'

Under the decisions of the Supreme Court of the state of Washington, a servant may be joined with the master in an action to recover damages for personal injuries alleged to have resulted from their negligence, whether the negligence of the servant consists in nonfeasance or misfeasance. Lough v. John Davis Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; Howe v. Northern Pacific Ry., 30 Wash. 569, 70 P. 1100, 60 L.R.A. 949. The action in the present case, therefore, was one which could be brought and enforced in the courts of that state. That a federal court in the same jurisdiction might rule differently as to the liability of the servant, where his negligence consisted in nonfeasance, is no ground for removal. In the Alabama Great Southern Railway Company Case the court said:

'The cases are in difference as to whether a common-law action can be sustained against master and servant jointly because of the responsibility of the master for the acts of the servant in prosecuting the master's business. In good faith, so far as appears in the record, the plaintiff sought the determination of his rights in the state court by the filing of a declaration in which he alleged a joint cause of action. Does this become a separable controversy, within the meaning of the act of Congress, because the plaintiff has misconceived his cause of action and had no right to prosecute the defendants jointly? We think, in the light of the adjudications above cited from this court, it does not. Upon the fact of the complaint, the only pleading filed in the case, the action is joint. It may be that the state court will hold it not to be so. It may be, which we are not called upon to decide now, that this court would so determine if the matter shall be presented in a case of which it has jurisdiction. But this does not change the character of the action which the plaintiff has seen fit to bring, nor change an alleged joint cause of action into a separable controversy for the purpose of removal.'

It remains to be considered whether the cause was removable upon the allegations of the petition of the railway company in which it was alleged that McDonald, its codefendant, was not a proper party defendant in said action, had no interest in said suit, and, if liable at all, was separately liable, and that he was made a party defendant 'for the sole and only purpose of preventing a removal of said action by your petitioner. ' In the Dixon Case the court held that, if the liability of the defendants as set forth in the complaint was joint and the cause of action entire, then the controversy was not separable as a matter of law, and that the plaintiff's purpose in joining certain defendants was immaterial. The court said:

'The petition for removal did not charge fraud in that regard, or set up any facts and circumstances indicative thereof, and plaintiff's motive in the performance of a lawful act was not open to inquiry.'

In Louisville, etc., R.R. Co. v. Wangelin, 132 U.S. 599-601, 10 Sup.Ct. 203, 204, 33 L.Ed. 473, the court said:

'The question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendant were wrongfully made joint defendants for the purpose of preventing a removal into the federal court.'

In Plymouth Min. Co. v. Amador Canal Co., 118 U.S. 264-270, 6 Sup.Ct. 1034, 1038, 30 L.Ed. 232, the court said:

'The averments in the petition that the defendants were wrongfully made to avoid a removal can be of no avail in the Circuit Court upon a motion to remand until they are proven, and that, so far as the present record discloses, was not attempted. The affirmative of this issue was on the petitioning defendant.'

In the case at bar there is no allegation that McDonald was wrongfully or fraudulently made a party defendant. The sole allegation is that he was made defendant for the purpose of preventing the removal of the action. This averment presented no question for the decision of the court. The motive of the plaintiff in joining defendants was immaterial so long as he was acting within his right. No evidence was taken upon that averment of the petition, nor did the court pass upon the question thus attempted to be presented. The motion to remand was denied upon the ground that no cause of action against McDonald was stated in the complaint.

It is contended that the plaintiff in error cannot be heard to insist that the cause was not removable for the reason that after the court had overruled his motion to remand and sustained the demurrer of McDonald, he voluntarily amended his complaint and made the defendant in error the sole defendant, thereby submitting to the jurisdiction of the Circuit Court. The sole question however, is whether the case was one properly removable from the state court as it stood in that court at the time when the petition was filed. That question is to be determined by the condition of the pleadings and the record at the time of the application for removal and not by the allegations of the petition or the subsequent proceedings which may be had in the Circuit Court. Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514; Wilson v. Oswego Tp., 151 U.S. 56, 66, 14 Sup.Ct. 259, 38 L.Ed. 70. If the petition had alleged that McDonald was fraudulently or wrongfully

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made a defendant for the purpose of preventing a removal, and the plaintiff had thereafter voluntarily dismissed as to him, his act might have been construed to be an admission of the truth of that allegation. But that is not what was done. After the removal, and after the court had denied the motion to remand and had sustained the demurrer of McDonald to the complaint, the plaintiff was compelled either to submit to a dismissal of his action or amend his complaint in accordance with the ruling of the court. He could not, before final judgment, review in an appellate court the action of the trial court in overruling his motion to remand. Bender v. Pennsylvania Co., 148 U.S. 502, 13 Sup.Ct. 640, 37 L.Ed. 537. Nor could he obtain mandamus to compel a remand. Ex parte Hoard, 105 U.S. 578, 26 L.Ed. 1176. By amending his complaint as he did, and submitting to trial, he did not give the court jurisdiction.

The judgment is reversed, and the cause is remanded to the Circuit Court, with instructions to remand the same to the state court, whence it was removed.