O'Harrow v. Henderson et al.

O’Harrow v. Henderson et al. (Circuit Court, D. Indiana. October 10, 1892.) No. 7,958. Removal oe Causes—Joint Dependants—Separable Controversy. An action for wrongful arrest and imprisonment and for malicious prosecution, instituted in a state court against two defendants jointly, cannot be removed by either into the federal court, under Act March 3, 1875, § 2, upon the ground of a separate controversy; and the fact that the defendant seeking removal has filed separate defenses does not make such cause of action separable. At Law. Action by John W. O’Harrow against John W. Henderson and the Adams Express Company. On motion to remand. Granted. Statement by Baker, District Judge: On the 1st day of April, 1885-, the plaintiff, O’Harrow, filed his complaint in two paragraphs in the superior court of Marion county, Ind., against the defendant Henderson and the express company. The first paragraph is for the recovery of damages for wrongful arrest and imprisonment without warrant or process of law. The second is for malicious prosecution. On the 17th day of April, 1885, the defendant the Adams Express Company filed its motion in writing to quash the return of service of process upon it, which was overruled by the court. On the 17th day of April, 1885, the defendant Henderson filed his separate answer in three paragraphs. Two paragraphs were special, and one in denial. On the 3'0th day of April, 1885, the defendant Henderson filed his separate, verified petition, accompanied by a proper bond, praying for the removal of the cause from the state court into this court. On the 2d day of May, 1885, the prayer of the petition was granted, and the said cause was ordered to be transferred into this court. The plaintiff moves to remand. Claypool & Ketcham, for plaintiff. Baker & Daniels, for defendants. [MAJORITY — Baker, District Judge,] Baker, District Judge, (after stating the facts.) This is an action sounding in tort for wrongful arrest and imprisonment and for malicious prosecution. The wrongs are alleged to have been jointly committed by the defendants. The cause must be remanded. One of two or more defendants, sued as joint wrongdoers, cannot remove such cause of action from a state court into the United States circuit court. 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, § 2, upon the ground of a separate controversy between the plaintiff and himself. The fact that the defendant asking the removal has filed separate defenses does not make the cause of action separable, although the plaintiff might have brought the action against either alone. Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U, S. 275, 6 Sup. Ct. Rep. 730; Plymouth Consolidated Gold Min. Co. v. Amador & S. Canal Co., 118 U. S. 264, 6 Sup. Ct. Rep. 1034; Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. Rep. 1265; Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. Rep. 203. Remanded. Exception by defendant.