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Liebesman v. Ackerson

Decided: December 22, 1933.

HYMAN LIEBESMAN, PLAINTIFF,
v.
DELAWAN ACKERSON, GEORGE WILKINSON, MARY WILKINSON, HIS WIFE (FIRST NAME FICTITIOUS AND UNKNOWN), GREAT ATLANTIC AND PACIFIC TEA COMPANY, EDWARD L. MURPHY (FIRST NAME FICTITIOUS AND UNKNOWN), JACK GOLDBERG, MEYER GROSSMAN, JACK STOLPER AND HARRY STOLPER, JOINTLY, SEVERALLY, AND IN THE ALTERNATIVE, DEFENDANTS



On petition of defendants George Wilkinson and Mary Wilkinson for order removing cause to the United States District Court for the District of New Jersey.

For the plaintiff, Abram I. Bluestein.

For the defendants George Wilkinson and Mary Wilkinson, Collins & Corbin (James B. Emory, of counsel).

Before Justice Heher, at the Passaic Circuit.

Heher

HEHER, J. The basis of this application is diversity of citizenship. The action is in tort. Five motor vehicles were involved in the occurrence which furnishes the basis for plaintiff's claim of tortious conduct by defendants -- nine in number, of whom five are non-residents. Plaintiff is a resident of New Jersey. The applicants, George Wilkinson and Mary Wilkinson, are residents of the State of New York. The complaint contains eleven counts. The first nine plead separate and individual causes of action against the defendants, respectively. Each of these counts charges that the named defendant, personally or by a servant, negligently operated an automobile. The tenth count charges joint negligence by all defendants, while the eleventh count repeats all the allegations of the ten counts, and claims damages from all defendants, in the alternative.

The claim asserted against defendant George Wilkinson, individually, is pleaded in the second count, which alleges that the injuries sustained by plaintiff were the result of the negligent operation of an automobile by George's servant and agent, Mary Wilkinson. None of the other defendants is therein charged with negligence. The third count, in like form as to allegations of negligence, pleads the alleged individual cause of action against defendant Mary Wilkinson.

Section 28 of the Federal Judicial Code (28 U.S.C.A. ยง 71) provides (inter alia) as follows:

"Any other suit of a civil nature, at law or in equity, of which the District Courts of the United States are given jurisdiction, in any state court, may be removed into the District Court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different states, and which can be fully determined

as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the District Court of the United States for the proper district."

It is the function of the state courts, on such applications, to examine the petition and record, and determine whether the statutory requirements have been complied with. Vermeule v. Vermeule, 67 N.J.L. 219; National Docks and New Jersey Junction Connecting Railway Co. v. Pennsylvania Railroad Co., 52 N.J. Eq. 58; 28 A. 71; affirmed, 52 N.J. Eq. 590; 33 A. 50; Bilecki v. Erie Railroad Co., 101 N.J.L. 17; 127 A. 328; Little v. Giles, 118 U.S. 596; 7 Sup. Ct. 32; 30 L. Ed. 269. It is well settled that the question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the state court at the time of the filing of the petition for removal, independently of the allegations in that petition, or in the affidavit of the petitioner, unless the petitioner both alleges and proves that the defendants were wrongfully made joint defendants for the purpose of preventing a removal into the federal court. Louisville and Nashville Railroad Co. v. Wangelin, 132 U.S. 599; 10 Sup. Ct. 203; 33 L. Ed. 474; Alabama and Great Southern Railroad Co. v. Thompson, 200 U.S. 206; 26 Sup. Ct. 161; 50 L. Ed. 441; Chicago and Alton Railroad Co. v. McWhirt, 243 U.S. 422; 37 Sup. Ct. 392; 61 L. Ed. 826; Hay v. May Department Stores Co., 271 U.S. 318; 46 Sup. Ct. 498; 70 L. Ed. 965.

A cause in which there is a resident, as well as a non-resident defendant, cannot be removed unless the controversy as to the non-resident defendant is separable from that against his resident co-defendant. Parlin & Orendorff Implement Co. v. Frey (Tex. Civ. App.), 200 S.W. Rep. 1143; certiorari denied 250 U.S. 640; 39 Sup. Ct. 491; 63 L. Ed. 1184. The jurisdictional requisite to the right of removal on the ground of separable controversy is the existence of "a controversy which is wholly between citizens of different ...


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