Wilson v. Republic Iron & Steel Co., 257 U.S. 92 (1921)
Wilson v. Republic Iron & Steel Company
No. 21
Argued October 6, 7, 1921
Decided November 7, 1921
257 U.S. 92
ERROR TO THE DISTRICT COURT OF THE UNITED STATES
FOR THE NORTHERN DISTRICT OF ALABAMA
Syllabus
1. Whether a district court into which a case has been removed from a state court may retain the case and proceed to its adjudication, or must remand it to the court whence it came, is a jurisdictional question, a decision of which sustaining the jurisdiction may be reviewed here by direct writ of error under Jud.Code § 238 after final judgment. P. 95.
2. A judgment of the district court dismissing an action after removal for failure of the plaintiff to pay the costs in an earlier one brought in that court upon the same cause of action, wherein he had taken a voluntary nonsuit, is a final judgment for purposes of review, even though not a bar to another action. P. 96.
3. But, upon a direct review under Jud.Code, § 238, involving the district court’s jurisdiction to retain the case after removal, the propriety of its action in dismissing it for failure to pay such costs cannot be considered. P. 96.
4. The fact that a joinder of a resident defendant, fair on its face, is a fraudulent device to prevent removal may be shown by a verified petition alleging the facts, as distinct from conclusions, and the statements so made must be accepted by the state court as true. P. 97.
5. After removal, the plaintiff, by motion to remand, plea, or answer, may traverse the allegations of the petition, and then the issues so arising must be heard and determined by the district court, and the petitioning defendant must carry the burden of proof, but, if the plaintiff fail to take issue with them, he must be deemed to assent to the truth of what is stated in the petition, and the petitioning defendant need not produce any proof to sustain it. P. 97.
6. Where a petition to remove an action for personal injuries brought by an employee against an employer and a coemployee, aptly and clearly showed that the coemployee was joined without any purpose to prosecute the action in good faith against him and with the purpose of fraudulently defeating the employer’s right of removal, held, that a motion to remand for want of jurisdiction merely specifying as grounds that the plaintiff and the coemployee were citizens of the same state and that the object of the removal was to delay the trial did not put in issue the facts averred in the petition, and that the question whether an employer and a coemployee might be jointly liable under the state law for the same injury, although the liability of the one was statutory and of the other at common law, was irrelevant. P. 98.
7. The fact that a removal was made for delay does not affect the jurisdiction of the district court to retain the case. P. 99.
Affirmed.
Direct writ of error to determine the jurisdiction of the district court to retain a case removed from a state court.