Deming v. Carlisle Packing Co., 226 U.S. 102 (1912)
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Deming v. Carlisle Packing Company
No. 511
Submitted November 4, 1912
Decided December 2, 1912
226 U.S. 102
ERROR TO THE SUPREME COURT
OF THE STATE OF WASHINGTON
Syllabus
Even though the record may present in form a federal question, the writ of error will be dismissed if it plainly appear that the federal question is so unsubstantial and devoid of merit as to be frivolous.
In this case, the only federal question was based on the refusal of the state court to remove the cause as to the nonresident defendants on the ground of fraudulent joinder of the resident defendant, and is frivolous as shown by the fact that the trial court refused to nonsuit as to the resident defendant, and there was a verdict against all.
Where the case is not removable before trial, plaintiff has the right to have the issues of fact and law raised determined in the state court having jurisdiction, and the power of the state court to so determine cannot be destroyed by defendants’ claim that, if the evidence had been rightly weighed, the decision would have been different.
Where the state court has jurisdiction, the federal court cannot deny the state court the right to exercise it.
The unsubstantial and frivolous character of the only federal question presented in this case embraces the conclusion that the writ was prosecuted for delay.
The power which this Court can exercise under one of its own rules depends upon the statute on which the rule is based.
Under Rule 23, which is based on § 1010, Rev.Stat., this Court has the same power to award damages for delay where the writ of error is dismissed as where there is judgment of affirmance, and in this case, five percent damages are imposed in addition to costs.
Writ of error to review 62 Wash. 455 dismissed.
The facts, which involve the jurisdiction of this Court of writs of error to state courts and the power of this Court to award damages for delay where the writ of error is dismissed, are stated in the opinion.