Evans v. Felton

96 F. 176, 1899 U.S. App. LEXIS 3223

Opinion

KOHLSAAT, District Judge.

Defendant’s contention in support of the proposition that the controversy herein is severable as to him is that the declaration fails to state a cause of action as against him, while it does state a good cause of action as against the other defendant. The declaration charges that the two defendants jointly committed the tort. It is admitted that, if the averments of fact were sufficient to support this charge, the cause would not be severalile. Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203. I hold that, under the facts in this case, where the declaration in form charges a joint tort against two or more defendants, the question of whether or not the declaration states facts sufficient to establish a good cause of action against either of the defendants is one for the determination of the state court. The cause is remanded.