Young v. Southern Pac. Co., 15 F.2d 280 (2d Cir. 1926)

*281 Dudley F. Phelps and Frank M. Swacker, both of New York City, for appellants.

Humes, Buck & Smith, of New York City (Gordon M. Buck, of New York City, and John R. Bartels, of Brooklyn, N. Y., of counsel), for appellee.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

To a preliminary suggestion of respondent that the law does not permit this appeal, we cannot accede. Admittedly no appeal lies from an order of remand, because Judicial Code, § 28 (Comp. St. § 1010), specifically forbids one, and none from an order refusing remand, because it is not final under Judicial Code, § 128 (Comp. St. § 1120). Since no motion to remand was made herein, it is urged that this appeal from an injunction, which only enforces a removal of assumed validity, is an indirect way of appealing from a refusal to remand.

There is some force in this, for plainly the Supreme Court has vigorously disapproved of attempted indirect review of removal proceedings. In re Pennsylvania Co., 137 U.S. 451, 11 S. Ct. 141, 34 L. Ed. 738; Pacific, etc., Co. v. Oregon, etc., 241 U.S. 440, 36 S. Ct. 637, 60 L. Ed. 1084. And this appeal cannot be decided without passing on the validity of this removal, for, if removal was unlawful, so was the injunction. On the other hand, there was a "hearing in the District Court," which resulted in an "interlocutory order or decree," and by that order "an injunction is granted," and under such circumstances Judicial Code, § 129 (Comp. St. § 1121), specifically grants an appeal. Quite probably this particular kind of appeal was not foreseen, but it is in terms covered, and we think the statute controls.

The objection to removal, which has been argued as if this were a motion to remand, is (1) that no separable controversy exists because a "joint" suit was brought; and (2) the power to remove a separable controversy exists only when there is a plurality of defendants. In the sense that this complaint shows a mechanical joinder in one pleading of several causes of action, the pleading is joint. But each cause of action is single, and just as singularly the property *282 of one plaintiff, as it would have been had such plaintiff sued singly.

This union of causes is of exactly the same kind as has long been common in admiralty, where the members of a crew may unite in one libel to recover their several wages. No one has ever supposed that any joint cause of action was created by such joinder. Nor is this a class suit; there has been one such proceeding, i. e., Southern Pacific Co. v. Bogert, supra; and whether there could be a second, under Supreme Tribe v. Cauble, 255 U.S. 356, 41 S. Ct. 338, 65 L. Ed. 673, need not be asked, for this suit does not pretend to be like the Bogert suit.

Further, the quoted portion of the New York Practice Act does not pretend to make joint causes of action previously separate and single. It permits a joinder only for convenience of trial, and if such union does not promote convenience severance will occur when and as often as convenience dictates. Therefore we find nothing in the form of pleading or nature of the 16 causes of action set forth to prevent a separation of controversies.

But, if it were shown that the Legislature of New York intended by this legislation to make something called a joint cause of action by permitting separate causes belonging to separate individuals to be united in one complaint, then such joinder cannot operate to destroy the jurisdiction of the courts of the United States over such of the separate controversies incorporated in one complaint as exist between citizens of different states. It is for Congress alone, under the Constitution, to declare that jurisdiction. Thus upon reason and authority we conclude that the causes of action removed were not joint.

As to the contention that section 28 means that to remove a severable controversy there must be a plurality of defendants, we do not think it necessary to deal with all the decisions presented at bar. It is true that in State of Missouri v. Chicago, etc., Co. (D. C.) 216 F. 562, it was said upon a motion to remand: "The removal statute contemplates severable controversies in case of two or more defendants. Where parties having severable interests voluntarily join as plaintiffs, the case is not otherwise than it would be if they were compelled to unite. They may exercise their election to declare the cause of action joint."

On the other hand, in State of Idaho v. American Surety Co. (D. C.) 218 F. 678, it was held that, where a single plaintiff brought suit to the use of numerous parties against a single defendant, a separate and severable controversy existed between one of the cestuis que usent and the single defendant, and remand was denied.

The right of removal is substantial, and the present statute secures the right of trial in the national courts of a controversy that is separable in its nature not of a controversy only with a defendant who severs himself from other defendants. The controversy of each wage-claiming seaman in the admiralty suit we have instanced is in its nature separable from the demand of every other seaman, and the right sought to be preserved by the statute is the right to a trial in the United States court of such a controversy. This is the doctrine set forth in Torrence v. Shedd, 144 U.S. 527, 12 S. Ct. 726, 36 L. Ed. 528, where it was said that to make a controversy separable it must exist wholly between the plaintiff and the defendant seeking to remove, "capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit." This is just as applicable to a multiplicity of plaintiffs suing a single defendant as it is to any other litigation.

Because then there is no effort in the state statute to produce more than a physically convenient joinder of actions, because the causes of action removed are in their nature separable, and because it is beyond the power of the state authority to limit, define or prevent the right of removal, the reason of the matter supports the removal procedure in this case. So far as the Missouri and Idaho cases, supra, are concerned, the quoted language from the Missouri case is but a dictum, to which we cannot agree. The point was squarely presented in the Idaho case, and with the result of that decision we agree. Being of opinion that a series of separable and removable controversies exist, it is admitted that the defendant exercised the right recognized and asserted in Chesapeake & Ohio Co. v. McCabe, 213 U.S. 207, 29 S. Ct. 430, 53 L. Ed. 765, and did not elect to remain in the state court after the judge thereof refused a removal order, but proceeded to file the record in the District Court, and left it to that court to decide the question of removability, and then proceeded by asking the injunction complained of to protect the federal jurisdiction. See, also, Iowa Central R. Co. v. Bacon, 236 U.S. 305, 35 S. Ct. 357, 59 L. Ed. 591, and cf. Shaft v. Phœnix, etc., Co., 67 N.Y. 544, 23 Am. Rep. 138.

*283 Once the right to issue the injunction be granted, there is nothing left of this appeal but a question of discretion. Considering the history of this litigation, we think the discretion was well exercised.

Order affirmed, with costs.