Whitcomb v. Smithson/Opinion of the Court
The action of the circuit court in remanding the cause after its removal on the first application is not open to revision on this writ of error. Missouri P. R. Co. v. Fitzgerald, 160 U.S. 566, 40 L. ed. 539, 16 Sup. Ct. Rep. 389. And if the state court did not err in denying the second application the motion to affirm must be sustained, as we think the question of the effect of that remanding order gave color for the motion to dismiss.

The record shows that the circuit court granted the motion to remand on the authority of Thompson v. Chicago, St. P. & K. C. R. Co. 60 Fed. Rep. 773, in which case it was ruled that there was no separable controversy; and its judgment covered the question of fact as to the good faith of the joinder. The contention here is that when the trial court determined to direct a verdict in favor of the Chicago, Great Western Railway Company, the result was that the case stood as if the receivers had been sole defendants, and that they then acquired a right of removal which was not concluded by the previous action of the circuit court. This might have been so if when the cause was called for trial in the state court plaintiff had discontinued his action against the railway company, and thereby elected to prosecute it against the receivers solely, instead of prosecuting it on the joint cause of action set up in the complaint against all the defendants. Powers v. Chesapeake & O. R. Co. 169 U.S. 92, 42 L. ed. 673, 18 Sup. Ct. Rep. 264. But that is not this case. The joint liability was insisted on here to the close of the trial, and the nonliability of the railway company was ruled in invitum. As stated by the supreme court of Minnesota, 'it was alleged in the complaint that both of these defendants operated locomotives and trains over tracks owned by the Chicago & Northern Pacific Railway Company, in the city of Chicago, and it was on this track that the collision occurred. The negligence alleged on the part of the receivers was in allowing their locomotive to stop and remain standing in the night-time at a certain place on their track, and when there was imminent danger of a collision, without giving proper or any signals of having so stopped: while the negligence on the part of the Chicago, Great Western Company was alleged to be an omission and failure on its part to adopt or establish proper of any rules for the giving of warning signals by its own or other locomotives or trains while being operated on said track.' The case was prosecuted by plaintiff accordingly, and at the close of the evidence a motion was made to instruct the jury to return a verdict in behalf of the railway company because the evidence did not sustain the allegations of the complaint as to the negligence of that defendant, and the court granted the motion on that ground in view of the rules of the company, which it found 'to amply cover all the contingencies arising in the prosecution of the various duties incident to railroad service at the point.'

This was a ruling on the merits, and not a ruling on the question of jurisdiction. It was adverse to plaintiff, and without his assent, and the trial court rightly held that it did not operate to make the cause then removable and thereby to enable the other defendants to prevent plaintiff from taking a verdict against them. The right to remove was not contingent on the aspect the case may have assumed on the facts developed on the merits of the issues tried. As we have said, the contention that the railway company was fraudulently joined as a defendant had been disposed of by the circuit court. But assuming, without deciding, that that contention could have been properly renewed under the circumstances, it is sufficient to say that the record before us does not sustain it.

Judgment affirmed. 

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