O'Harrow v. Henderson

52 F. 769, 1892 U.S. App. LEXIS 1962

• Court: U.S. Circuit Court for the District of Indiana
• Decided: October 10, 1892
• Docket: No. 7,958
• Status: Published

Opinion

Baker, District Judge,

(after stating the facts.) This is an action sounding in tort for wrongful arrest and imprisonment and for malicious prosecution. The wrongs are alleged to have been jointly committed by the defendants. The cause must be remanded. One of two or more defendants, sued as joint wrongdoers, cannot remove such cause of action from a state court into the United States circuit court. It has often been decided that an action brought in a state court against two, jointly, for a tort, cannot be removed by either of them into the circuit court of the United States, under Act March 3, 1875, c. 137, § 2, upon the ground of a separate controversy between the plaintiff and himself. The fact that the defendant asking the removal has filed separate defenses does not make the cause of action separable, although the plaintiff might have brought the action against either alone. Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U, S. 275, 6 Sup. Ct. Rep. 730; Plymouth Consolidated Gold Min. Co. v. Amador & S. Canal Co., 118 U. S. 264, 6 Sup. Ct. Rep. 1034; Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. Rep. 1265; Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. Rep. 203. Remanded. Exception by defendant.