This action was brought September 27, 1901, by the defendant in error in the Mason county circuit court of Kentucky against the Chesapeake & Ohio Railway Company, a Virginia corporation, and the Maysville & Big Sandy Railroad Company of Kentucky, to recover damages for the death of her intestate, by the negligence, as it is alleged, of the Chesapeake & Ohio Railroad Company, in operating one of its trains over a railroad track which had been leased to it by the other company.
The allegations of the petition in substance are that the intestate of defendant in error received injuries which caused his death by being negligently run into by a train operated by the Chesapeake & Ohio Railway Company. And negligence is charged against the Maysville & Big Sandy Railroad Company, in permitting its tracks to be used by the other company. It alleges that, more than twelve months before the injuries to her intestate, the Maysville & Big Sandy Railroad Company leased and transferred its entire line to the Chesapeake & Ohio Railway Company, and that the latter has had since that time the exclusive possession and control of it; that, by the laws of Kentucky, the lease and transfer were ultra vires and void; that in December, 1893, under § 211 of the Constitution of Kentucky, and under § 841 of the statute of the state, the Chesapeake & Ohio Railway Company became a corporation, citizen, and resident of the state, by filing in the office of the secretary of state, and in the office of the railroad commissioner, copies of its articles of incorporation, and that thereupon a certificate of incorporation was issued to it by the secretary of state. The petition further alleges that the railroad track was laid in Third street, in Maysville, under an ordinance from the city authorities; that the railroad occupied the whole street, so as to render, it unfit for travel by wagons or vehicles; that the city authorities were without power to authorize such use of the street, and that the ordinance was void, and the operation of the trains on the street was illegal.
On December 11, 1901, the Chesapeake & Ohio Railroad Company filed a petition to remove the action to the circuit court of the United States for the eastern district of Kentucky. The petition set up that the Chesapeake & Ohio Railroad Company was a Virginia corporation; that the suit was of a civil nature; that the amount involved exceeded $2,000; that in the suit there was a controversy which was wholly between citizens of different states, to wit, between the Chesapeake & Ohio Railroad Company, a citizen of Virginia, and the plaintiff in the suit, who was a citizen of the state of Kentucky. It was further alleged that the Maysville & Big Sandy Railroad Company was not a necessary party to the suit, but was made a defendant therein 'for the sole and simple purpose' of preventing the Chesapeake & Ohio Railroad Company from removing the suit to the circuit court of the United States, and thereby unlawfully, wrongfully, and fraudulently depriving it of a right conferred by the Constitution and laws of the United States.
Petitioner quotes all the allegations of the plaintiff connecting the Maysville & Big Sandy Company with liability, and avers that 'each and all of them' were 'untrue and palpably so, and were known to the plaintiff to be untrue' when made in the original and amended petition. Petitioner alleges that, by reason of its charter and amendments thereto, and partly of the act of February 17, 1866, entitled, 'An Act Authorizing the Sale of the Maysville & Big Sandy Railroad, and Providing for the Organization of a New Company under Its Charter to Construct Said Road' (Session Acts 1866, page 644), and of the General Laws of the state of Kentucky, the Maysville & Big Sandy Railroad Company, which petitioner states was recognized under said act and laws, before the making of said contract and lease, had full authority to make the same, and that petitioner was operating the railway under the same at the time of the injury complained of. And the petitioner finally 'charges and avers that the allegations of the plaintiff's petition and amended petition, hereinbefore recited and controverted, were made, and its codefendant was made defendant to this action, and was sued for the injury complained of herein, for the sole and fraudulent purpose of depriving this defendant of the right to remove this action to the Federal court for the eastern district of Kentucky, and of depriving that court of its jurisdiction.'