American Car & Foundry Co. v. Kettelhake, 236 U.S. 311 (1915)

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American Car & Foundry Company v. Kettelhake

No. 138

Argued January 20, 1915
Decided February 23, 1915
236 U.S. 311

ERROR TO ST. LOUIS COURT OF APPEALS,

STATE OF MISSOURI

Syllabus

Where there is a joint cause of action against defendants resident of plaintiff’s state and a nonresident defendant, in order to make the case removable as to the latter because of the dismissal as to the former, the discontinuance as to the resident defendants must have been the voluntary act of the plaintiff and have so taken the resident defendants out of the case as to leave the controversy one wholly between the plaintiff and the nonresident defendant.

Under the practice in Missouri, when the court has sustained demurrers by some of the defendants and allowed plaintiff to take an involuntary nonsuit as against them with leave to set it aside, the case is not then ended as against those defendants, nor is it until after affirmance by the appellate court or the expiration of plaintiff’s time to appeal; the controversy does not become one solely between the plaintiff and the other defendants, and even if the latter are nonresidents of plaintiff’s state, the case is not removable as to them. Powers v. Chesapeake & Ohio Ry., 169 U.S. 92, distinguished.

171 Mo.App. 528 affirmed.

The facts, which involve questions regarding removal from the state to the federal court where the cause of action has been dismissed after trial as to all the defendants, resident of the same state as plaintiff, are stated in the opinion.