In the circuit court of the United States, the plaintiff contended that that court had no jurisdiction to entertain the case, and to render the final judgment complained of, because the case had not been duly removed into that court from the state court in which it had been commenced.
The question thus presented was not, as in Smith v. McKay, 161 U.S. 355, 16 Sup. Ct. 490, whether a suit of which the circuit court of the United States was admitted to have jurisdiction was cognizable on the common law or on the equity side of the court, but the question was whether the circuit court of the United States had any jurisdiction whatever of the case. The jurisdiction of the circuit court of the United States was thus in issue, and, the question of its jurisdiction having been duly certified, the case was rightly brought from the circuit court of the United States directly to this court, under the act of March 3, 1891, c. 517, § 5 (26 Stat. 827), upon the question of jurisdiction only.
The action was brought against a railroad company and several of its servants to recover for an injury alleged to have been caused to the plaintiff by the negligence of all the defendants. It is well settled that an action of tort, which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the circuit court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; for, as this court has often said: 'A defendant has no right to say that an action shall be several which the plaintiff seeks to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.' Pirie v. Tvedt, 115 U.S. 41, 43, 5 Sup. Ct. 1034, 1161; Sloane v. Anderson, 117 U.S. 275, 6 Sup. Ct. 730; Little v. Giles, 118 U.S. 596, 600, 601, 7 Sup. Ct. 32; Railroad Co. v. Wangelin, 132 U.S. 599, 10 Sup. Ct. 203; Torrence v. Shedd, 144 U.S. 5 7, 530, 12 Sup. Ct. 726; Connell v. Smiley, 156 U.S. 335, 340, 15 Sup. Ct. 353. Applying this rule, the circuit court of the United States, when this case was first removed into that court, ordered it to be remanded. 65 Fed. 129, 130.
It is true that the same court, in similar cases between other parties, has since decided otherwise, and, upon a review of conflicting authorities, and referring to the distinction taken under the old system of special pleading between trespass and trespass on the case, has held that a master and servant cannot be joined in an action for a tort, and therefore the controversy between each of them and the plaintiff is a separate controversy. Warax v. Railway Co., 72 Fed. 637; Hukill v. Railroad Co., Id. 745.
But is is unnecessary now to consider which of the views of the circuit court upon this question is the correct one, because that court, by its order remanding this case, distinctly and finally adjudged, as between these parties, and for the purposes of this case, that at the time of the filing of the first petition for removal the case was not removable, because, as it then stood, some of the defendants were citizens of the same state with the plaintiff, and there was no separate controversy between the plaintiff and the railway company, a citizen of a different state from himself. That order is not reviewable by this court. Gurnee v. Patrick Co., 137 U.S. 141, 11 Sup. Ct. 34; In re Pennsylvania Co., 137 U.S. 451, 11 Sup. Ct. 141; Birdseye v. Schaeffer, 140 U.S. 117, 11 Sup. Ct. 885; Railway Co. v. Fitzgerald, 160 U.S. 556, 16 Sup. Ct. 389.
After the case had been so remanded, and when it was called for trial in the state court, the plaintiff discontinued his action against all the individual defendants, leaving it an action between citizens of different states; and the case then for the first time became one in its nature removable, and the single remaining defendant thereupon immediately filed a second petition for removal, which was denied by the state court, but was granted, and an amendment thereof allowed, by the circuit court of the United States. 65 Fed. 129.