Chesapeake & Ohio Railway Company v. McCabe
This action was brought September 27, 1901, by the defendant in error in the Mason county circuit court of Kentucky against the Chesapeake & Ohio Railway Company, a Virginia corporation, and the Maysville & Big Sandy Railroad Company of Kentucky, to recover damages for the death of her intestate, by the negligence, as it is alleged, of the Chesapeake & Ohio Railroad Company, in operating one of its trains over a railroad track which had been leased to it by the other company.

The allegations of the petition in substance are that the intestate of defendant in error received injuries which caused his death by being negligently run into by a train operated by the Chesapeake & Ohio Railway Company. And negligence is charged against the Maysville & Big Sandy Railroad Company, in permitting its tracks to be used by the other company. It alleges that, more than twelve months before the injuries to her intestate, the Maysville & Big Sandy Railroad Company leased and transferred its entire line to the Chesapeake & Ohio Railway Company, and that the latter has had since that time the exclusive possession and control of it; that, by the laws of Kentucky, the lease and transfer were ultra vires and void; that in December, 1893, under § 211 of the Constitution of Kentucky, and under § 841 of the statute of the state, the Chesapeake & Ohio Railway Company became a corporation, citizen, and resident of the state, by filing in the office of the secretary of state, and in the office of the railroad commissioner, copies of its articles of incorporation, and that thereupon a certificate of incorporation was issued to it by the secretary of state. The petition further alleges that the railroad track was laid in Third street, in Maysville, under an ordinance from the city authorities; that the railroad occupied the whole street, so as to render, it unfit for travel by wagons or vehicles; that the city authorities were without power to authorize such use of the street, and that the ordinance was void, and the operation of the trains on the street was illegal.

On December 11, 1901, the Chesapeake & Ohio Railroad Company filed a petition to remove the action to the circuit court of the United States for the eastern district of Kentucky. The petition set up that the Chesapeake & Ohio Railroad Company was a Virginia corporation; that the suit was of a civil nature; that the amount involved exceeded $2,000; that in the suit there was a controversy which was wholly between citizens of different states, to wit, between the Chesapeake & Ohio Railroad Company, a citizen of Virginia, and the plaintiff in the suit, who was a citizen of the state of Kentucky. It was further alleged that the Maysville & Big Sandy Railroad Company was not a necessary party to the suit, but was made a defendant therein 'for the sole and simple purpose' of preventing the Chesapeake & Ohio Railroad Company from removing the suit to the circuit court of the United States, and thereby unlawfully, wrongfully, and fraudulently depriving it of a right conferred by the Constitution and laws of the United States.

Petitioner quotes all the allegations of the plaintiff connecting the Maysville & Big Sandy Company with liability, and avers that 'each and all of them' were 'untrue and palpably so, and were known to the plaintiff to be untrue' when made in the original and amended petition. Petitioner alleges that, by reason of its charter and amendments thereto, and partly of the act of February 17, 1866, entitled, 'An Act Authorizing the Sale of the Maysville & Big Sandy Railroad, and Providing for the Organization of a New Company under Its Charter to Construct Said Road' (Session Acts 1866, page 644), and of the General Laws of the state of Kentucky, the Maysville & Big Sandy Railroad Company, which petitioner states was recognized under said act and laws, before the making of said contract and lease, had full authority to make the same, and that petitioner was operating the railway under the same at the time of the injury complained of. And the petitioner finally 'charges and avers that the allegations of the plaintiff's petition and amended petition, hereinbefore recited and controverted, were made, and its codefendant was made defendant to this action, and was sued for the injury complained of herein, for the sole and fraudulent purpose of depriving this defendant of the right to remove this action to the Federal court for the eastern district of Kentucky, and of depriving that court of its jurisdiction.'

The petition was granted, and the clerk of the court, on the 14th of December, 1901, was directed to make up the record of said cause for transmission to the circuit court of the United States for the eastern district of Kentucky. The plaintiff in the case excepted to the order and subsequently made a motion to set it aside, which was denied. An appeal from the order to the court of appeals was immediately granted, which court, on the 5th of March, 1902, reversed the order and remanded the case for trial. 112 Ky. 861, 66 S. W. 1054. The trial was had and the jury instructed by the court to find in favor of the defendant. This judgment was reversed by the court of appeals. 28 Ky. L. Rep. 536, 89 S. W. 683. Another trial was had, resulting in a verdict and judgment for plaintiff in the sum of $2,500. The judgment was sustained by the court of appeals. 30 Ky. L. Rep. 1009, 100 S. W. 219. To this judgment the writ of error in the present case was taken.

The record further shows that, after the appeal from the order of removal, plaintiff in error filed a transcript of the record in the circuit court of the United States for the eastern district of Kentucky, and the case was duly docketed. After the decision of the court of appeals of Kentucky, reversing the order of the Mason county circuit court, removing the case to the circuit court of the United States, plaintiff filed in the latter court a motion to remand the case to the state court. On October 19, 1903, that motion was overruled.

On April 4, 1904, the Chesapeake & Ohio Railroad Company filed in the circuit court of the United States its answer to the petition of the plaintiff, and on motion of the latter the cause was set down for trial April 12. On the latter date the Chesapeake & Ohio Railroad Company moved for judgment of dismissal of the suit on the face of the pleadings. This motion was granted, and also a demurrer of the Maysville & Big Sandy Railroad Company was sustained to the petition, and judgment rendered.

On November 17, 1903, plaintiff in error offered for filing an answer in the Mason county circuit court, which set up the petition for removal, and the order thereon, removing the cause to the circuit court of the United States, the filing in the latter court of the transcript of the record and the docketing of the cause the 13th of January, 1902. The answer alleged also that, on motion of the defendants, a rule was issued against the plaintiff to show cause why she should not be required to give bond for costs or make a deposit of money in lieu thereof, that the plaintiff filed a response thereto, and, after the decision of the court of appeals of Kentucky, reversing the order removing the cause to the circuit court of the United States, appeared by her counsel in the latter court, filed a petition to remand the case to the state court, a brief in support thereof, the opinion of the court of appeals, and that, on the 19th of October, 1903, the motion was denied.

The motion to file the answer was denied by the state court, but, by order of the court, it was made part of the record.

Notwithstanding the judgment of April 12, 1904, of the circuit court of the United States, dismissing the action, the case remained on the docket of the state court, and, before it was called for trial again, the defendants therein (plaintiffs in error here) tendered an amended answer, setting out all the proceedings in the circuit court of the United States, attaching thereto copies of the judgments of that court, and alleging that they were in 'force and effect unreversed,' and pleaded 'the same to plaintiff's recovery against them and each of them in said action.' The court refused to let the answer be filed, but ordered that it be made part of the record.

Messrs. E. L. Worthington, W. D. Cochran, and W. H. Wadsworth for plaintiffs in error.

Messrs. Allan D. Cole and W. T. Cole for defendant in error.

Statement by Mr. Justice Day:

Mr. Justice Day delivered the opinion of the court: 

Notes
Chesapeake and Ohio Railway