EVANS v. FELTON; BIRCH v. SAME

EVANS v. FELTON. BIRCH v. SAME. (Circuit Court, N. D. Illinois, N. D. July 27, 1899.) No. 24,799. Removal of Causes — Separable Controversy — Action for Joint Tort. Where a declaration in a state court in form charges a joint tort against two or more defendants the cause is not removable by one defendant as involving a separable controversy on the ground that the facts stated do not constitute a cause of action against him, that being a matter for the determination of the state eourt. On Motion to Remand. F. J. Woolley, for plaintiff. Rufus S. Simmons, for defendant. Separable controversy as ground for removal, see note to Robbins v. Ellenbogen, 18 C. C. A. 86, and, supxilementary thereto, note to Meeke v. Mineral Co., 35 C. C. A. 155. [MAJORITY — KOHLSAAT, District Judge.] KOHLSAAT, District Judge. Defendant’s contention in support of the proposition that the controversy herein is severable as to him is that the declaration fails to state a cause of action as against him, while it does state a good cause of action as against the other defendant. The declaration charges that the two defendants jointly committed the tort. It is admitted that, if the averments of fact were sufficient to support this charge, the cause would not be severalile. Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203. I hold that, under the facts in this case, where the declaration in form charges a joint tort against two or more defendants, the question of whether or not the declaration states facts sufficient to establish a good cause of action against either of the defendants is one for the determination of the state court. The cause is remanded.