We have already decided, in the Powers Case, that where a plain· tiff joins, with a nonresident defendant, resident codefendants, in a joint action for it tort, solely to prevent a removal to the United States court, and, after the time for such removal is passed, dis· misses all but the nonresident defendant, the case is then removable to the United States court, because all the indispensable elements to federal jurisdiction are present, and the objection as to time is removed by the conduct of' the plaintiff, which disables him from taking advantage of the delay which he purposely caused. ,Applying this principle to the case before us, tp.e removal must be sustained, and the motion to remand be overruled.
SHEPHERD et al.
(Circuit Court, W.' D. Missouri, W.' D. J !lnnary, 7, 1895.)
REMOVAL OF CAUSES-REFUSAL OF STATE COURT TO MAKE ORDER.
When ,a defendant has made proper application for removal of a cause !rom a state courito a United States court, and has filed a transcript oll the record in t)le United states court, jurisdiction eo instanti attaches, in that court" though the state court has refused, to mllke an order of remova1, and has assumed to enter a nonsuit. .
2. SAME-SEPARABLE CONTROVERSY-PRAC'rrCE.
An action for libel' was brought in a state colirt against a commercial agency; a corporation, of another state, and its local agent; a citizen of the state where suit was brought, the gravamen of the complaint being the publication of certain statements concerning plaintiff's, credit. It was alleged, upon apetiiion for re.tnoval ,and severance of the action, that the local agent was made a party solely to prevent removal of the cause. Held, that theCQUrt would examine .closely into the actual relation of tbeagent toille facts constituting the alleged cause,of action, and into the motives of plaintiff,in joining him as a party, and, finding him probably not a necessary party, would deny a motion to remand, leaving it for the court upon the trial to remand the calise as improvidently removed,if plaintiff eould then make!t appeal' that he was a real party to the action.
.This was by H. C. Shepherdagamst the Bradstreet Company' and Ha.rry nolofI, for ,libeL 'l'he action was, brought in a court of the state of}1issouri, and was removed by the defendant the Bradstreet Company to the United States circuit court. Plaintiff moves to renmnd. . Davis, Loomis & Davis, for plaintiff. . William A. Wood, Dowe, Johnson & Rusk, and W.S. Leeper, for defendants. PHILIPS, District Judge. This' suft was in the .state circuit court of Caldwell county by the plaintiff, a citizen of said county, against the defepdallt the Bradstreet a. citizen of anotbet' state, and tbe:·defendant Harry Roloff, citizen of said Caldwell county, state: pfMissouri. The defendant . company in due time filed its application for a removal of the cause as to it into this jurisdiction. The application is upoQ ..the diverse citizenship of, said compallY, accompanieQ. with the; f.urther alle-
gation that the cause of action is separable, and that the plaintiff joined the resident defendant, Roloff, solely for the purpose of giving a cause of action against it in the local jurisdiction of Caldwell county, and to prevent it from the exercise of its right to remove the cause as to it into this court. On the filing of said petition for removal the plaintiff undertook to enter a nonsuit therein, which the court permitted, and thereupon denied the petition to remove the cause into this court. It is well settled that, after proper application made for removal, the state court loses jurisdiction over the case, save for the purpose of making the order of removal. And on filing the proper transcript in this court, as the defendant company has done, jurisdiction eo instanti attaches here. The pladntiff has filed in this court a motion ask· ing that the cause be remanded to the state court. The motion alleges. as grounds therefor that the state court made no order removing the cause into this court, and "that this court has no jurisdiction in this action neither of the subject-matter therein, nor of the defendants therein, nor of any of them." From this motion it would seem that plaintiff's notion is that no jurisdiction over the subject-matter, nor over the defendants, nor either of · them, attaches here because of the fact that the state court failed to make the order of removal, as .no other ground is assigned for , the motion to remand. The motion' might properly enough be denied on this ground alone. But the parties have argued the question as to whether or ,not the cause of action is severable as to · the defendants, and in support of and against the motion many q,ffidavits have been filed by the respective parties. To understand this controversy, it may be briefly stated that the gravamen of the complaint in the petition is that the defendant Roloff is the local agent of the Bradstreet Company, a nonresident copporation, and that the defendimt the Bradstreet Company, b.y its servants, agents, and employes and the defendant Roloff, falsely, etc., composed, and published, telegraphed and reported ana cir· culated over the country, by a written or printed telegram. and by a written or printed commercial report, that the plaintiff had been attached, etc., whereby he was greatly injured in his busithat ness, etc. The second count in the petition merel,}" "defendant" did the acts complained of; but which defendant is not stated. It is charged by the defendant the Bl"'adstreet Company, in its petition for removal, and affidavits filed herein, that the joinder of defendant Roloff was merely for the purpose of denying to the Bradstreet Company its right of trial in this jurisdiction. It quite clearly enough appears from these affidavits that RA>loff resides in the county of Caldwell, and was the local agent of the Bradstreet Company for a limited purpose, which did not embrace the publiootion of such information, and that said Roloff is insolvent. The plaintiff, in his counter affidavits, seeks to show that the imputed agency of Roloff was broader than that claimed for him on the part of the defendants; that it extended . to the matter of collecting information for the company as to the 'solvency and financial condition of business men in that locality.
But this contention is .predicated merely upon acts and declarations of-;ijl.e imputed agent. "It is welhsettled law that as agency cannot be established by the mere acts or declarations of the imputedagent, nor from the mere fact that he assumes to act as agent." Anderson v. Volmer, 83 Mo. 406, and citations. But it is clearly apparent from all the affidavits that the agency of Roloff, reasonably implied, did not extend further' than the, act of forwarding to the company information respecting the credit and solvency of persons in the given locality. No averment is made in the petition nor the affidavits that Roloff's agency extended to the lliatter of giving publicity to any reports he might make; and, in the absence of such averments, it does not sufficiently appear that he was authorized by the company to make such publications. On the contrary, it is reasonably inferable from the usual eourse of such business that the agency of the local agent extended to the simple duty of giving by telegram, letter, or report information to the company respecting the financial standing and solvency of persons in his locality. If the publication was subsequently made by the principal, that was an act independent of the report sent in by the agent, and no joint action would lie therefor, in the absence of an averment and proof of a cunspiracy. The Joinder of an agent with his principal under such circumstances, should be narrowly scanned by the courts, where its effect is to deny to the nonresident defendant a right of trial in the federal court. It is permissible to this court, in a contention like this, to entertain affidavits to get at the real state of the facts respecting the object of such joinder, to enable the court to see whether or not there be a joint cause of action against all the defendants, or whether or not it be one only by averment. Nelson v. Hennessey, 33 Fed. 113; Rivers v. Bradley, 53 Fed. 305; Fergason v. Railway Co., 63 Fed. 177; Dow v. Bradstreet Co., 46 Fed. 824. It is true, in this case, that the plaintiff and his attorneys make affidavit denying the fact that it was understood or discussed between lawyers and client that Roloff should he joined in the action for the purpose of defeating the removal of the cause into this court by the company, and the plaintiff also states that he had no such purpose. But it is a noticeable fact that, while his attorneys state that the matter was not canvassed between them and their client, it is not stated that they did not canvass the .matter among themselves as attorneys. Ofttimes actions speak louder th!1n words. Immediately on filing the petition by the comp3,Oy asking fora removal of this cause,as to it, into the United States circuit, pourt, the plaintiff songht to dismiss his action. Why did he dotbis, but for the fact that he was unwilling to litigate this controversy with tne nonresident defendant on ,more common,neutralgrollnd? And as proof that .this was the real incenthe to the action of the plaintiff in. thus attempting to defeat the removal, Olle. of. the defendants', attorneys makes affidavit that upon the attempted dismissal of the suit plaintiff's attorneys said to him that they would now reinstitute the action in the stateco'llct for ,a sum :less than the jurisdiction of. the federal
TOD'II. CLEVELAND & Y. V. BY. CO.
court, so the defendant could not remove it. This atlldavit is not denied by the plaintiff or by his attorneys. Another :I1act is significant from the affidavits filed by the plain· tiff in this case: That, although advised by the contention of the defendants that there was no community of action between the report of the defendant Roloff to the company and its subsequent publication, none of the affiants on the part of the plaintiff state or show that the defendant Roloff was instrumental in making the alleged publication, or that he authorized the same to be published. As the publication is the gist of the libe), this foltate· ment was important under the issues joined on this motion. The failure Of the plaintiff to support this averment in his petition, after accepting the gauge of battle thrown down by the challenge of the defendant in the affidavits filed herein, by his own or any other affidavit, is little less than an admission of the truth of defendant's charge. If, as a matter of fact, the defendant Rilloff, in connection with other servants, agents, and of the defendant company, made the libelous publication which is the gravamen of this action, the plaintiff can make that fact appear on the trial of this cause in this court; and when he does so this court will discontinue the case here, and remand the same to thp state court on the ground that it was improvidently removed. The motion to remand is denied.
TOD v. CLEVELAND & Y. V. RY. CO. et at (Circuit Court of Appeals, Sixth Circuit. December 4, 1894.) No. 202.
REMOVAL OF CAUSES--LoCAL PREJUDICE-AMOUNT IN CONTROVERSY.
The record presented upon an application for removal of a cause from a state to a United States court, on the ground of local prejudice, in order to authorize the latter court to assume jurisdiction, must show that the amount in controversy exceeds $2,000.
SAME-WAIVER OF OBJECTIONS.
A plaintiff whose cause has been removed from a' state to a United States court, and who falls to prosecute a motion to remand, thereby waives all objections to the removal which he is competent to waive, includIng the objection that the showing of local prejudice was not sufficIent, in a case where the removal was on that ground. An entry In the record of the circuit court, upon an application for removal of a cause from a state court, on the ground of local prejudice, whIch is In form simply' a finding of the right to removal, without an order that the cause be removed, does not effect the removal of the cause. Whether, when suchan entry is brought to the attention of the state cOurt,.and it thereupon treats the cause as removed, and the followS It to the United States court, and proceeds therein without objection, the defect Is not thereby waived, quaere.
SAME-ORDER OF REMOVAL.
In Error to the Circuit Oourt of the United States for the Northern Distnct of Ohio. v.65F.no.2-10