
    ATLANTIC COAST LINE R. CO. v. DANIELS. SAME v. WILSON. SAME v. WEEMS.
    (Circuit Court, S. D. Georgia, E. D.
    July 16, 1909.)
    1. Courts (§ 508)—State Court Proceedings—Courts of Concurrent Jurisdiction.
    A federal court, except on the plainest grounds of imperative necessity, will not enjoin a proceeding in a state court of concurrent jurisdiction, properly pending therein, where on'the face of the record it appears that the action in the state court is not removable, and there has been no fraudulent' attempt to defeat the federal court’s jurisdiction.
    [Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 1418-1430; Dec. Dig. § 508.* • •
    Enjoining proceedings in state courts, see note to Garner v. Second Nat. Bank, 16 O. C. A. 90; Central Trust Co. v. Grantham, 27 O..C. A. 575; Copeland v. Bruning, 63 C. C. A. 437.]
    2. -Removal of Causes (§ 36*)—Joinder of Defendants—Purpose.
    Where oh the face of the record plaintiff appears to have a cause qf action against each of the defendants joined, one of whom is a resident of the s.ame state as plaintiff, it is not material that the actual purpose of plaintiff in joining the resident defendant was to prevent a removal of the cause to the federal courts.
    [Ed. Note.—For other cases, see Removal- of Causes, Cent. Dig. § 79; Dec. Dig. § 36.* .. ' . ’
    Fraudulent joinder of parties to prevent removal, see note to Offner v. Chicago & E. R. Co., 78 C. C. A. 362.]
    In Equity. Suits by the Atlantic Coast Line Railroad Company against Dr. John W. Daniels, Mrs. Hattie W. Wilson, 'and Golden Weems. Application for an injunction restraining the prosecution of the suits pending in the state court.
    Denied.
    Garrard & Meldrim, for plaintiff.
    Osborne & Lawrence, for defendants.
    
      
      For otüer cases see same topic & «¡.number In Dec, & Am. Digs. 1S07 to date, & Rep’r Indexes
    
   SPEER, District Judge

(orally). The bills presented call for the exercise on’ the part of the court of a power, which, while it may exist,should never be exercised except upon the plainest grounds of.necesr sity, imperative necessity at that, and that is the power tp enjoin a proceeding in a court of concurrent jurisdiction. .It is true that the application is directed merely against the parties before the court, but it is nevertheless in all essential respects a proceeding to enjoin the prosecution of a case pending in the state court.. It is made to a court of the United States, and the doctrines of comity which exist between-those. courts are applicable here as they are applicable in all cases where, any question arises o‘f conflicting or'concurring jurisdiction.o Now, when we look at the record in this case, we see before his honor, Judge Freeman, in the city court of Savannah, a suit on the face of which- he -clearly had -jurisdiction.. It is 'against two or' more tort-feasors. In each case they are alleged to have inflicted the injuries for which the. actions are brought. A petition for removal is filed on behalf merely of one of the defendants;’ that is, the nonresident railway company. It is based upon the ground only of diversity of citizenship. Nothing is said before Judge Freeman about sham defendants. Nothing is said in the petition for removal about a fraudulent scheme to defeat the jurisdiction of the United States court, and, a citizen of Georgia being a party defendant, that eminent jurist, on the record before him, I think, properly refused to remove the cases. Then an application is .made to this court, entirely independently of the proceeding before him, on what is termed an “ancillary bill,” for an injunction, and upon the averments that there are sham defendants, and the like, we are asked to enjoin the proceeding in the state court.

It does not occur to me that this is a case where that power should be exercised. It could be exercised. It was exercised in the case of Bailey (Atlantic Coast Line Ry. Co. v. Bailey [C. C.] 153 Fed. 891), so frequently referred to by counsel for complainants, but in that case it appeared from the face of the record that there was no cause of action against one of the defendants joined. That is not this case. Here, on the face of the record, the plaintiffs appear to have a case against'each of the defendants joined. It may be that counsel had in mind the joining of these defendants-to keep the case in the court which they preferred and to defeat the jurisdiction of this court. If, however, they are substantial defendants, if they really and actually, as alleged, contributed to the injury, it does not appear to me that plaintiffs are denied their legal right to have such wrongful conduct passed on in the state court.

The plaintiffs, then, are not denied their legal right to bring an action against such defendants atid join them with the nonresident company. Each case must depend on its own facts and pleadings, and while, if it appeared from the face of the record before Judge Freeman that there were sham defendants, and that there was a fraudulent attempt to defeat the jurisdiction of this court, we might he obliged to grant the injunction, it docs not appear so here, I think, therefore, that the defendants should be remitted to the usual procedure of an appeal, from Judge Freeman’s decision refusing the order of removal, to the Supreme Court, or other proper appellate court of the state, and this court should not be called upon to do the always exciting and friction creating act of issuing an injunction against a proceeding in a court of concurrent jurisdiction.

For these reasons, the injunction will be denied.  