
    CAROTHERS v. McKINLEY MINING & SMELTING CO. et al.
    (Circuit Court, D. Nevada.
    March 16, 1903.)
    No. 754.
    L Removal of Causes — Prevention — Resident Defendant — Fraud of Plaintiff.
    The resident agent of a foreign corporation, who has merely served on plaintiff a notice, signed by him as managing director, that plaintiff is wrongfully occupying certain premises, and will be held liable for ^trespass unless he surrenders them, cannot be made a party defendant to plaintiff’s action of ejectment against the corporation, so as to prevent its removal to the federal courts, even though plaintiff denies any fraud in so making the agent a party.
    Motion to Remand.
    This is an ordinary action of ejectment to recover the possession of certain mining ground, and damages for the withholding thereof. The action was commenced in the state court. The complaint, as to the citizenship of the parties, alleges (1) that said McKinley Mining & Smelting Company is a corporation organized and existing under and by virtue of the laws of the state of New York; that the said Canton Mining Company is a corporation organized and existing under and.by virtue of the laws of the state of Ohio; that said Mrs. William McKinley and Mrs. Marshall Barber are residents and citizens of the state of Ohio; that the defendant Dix W. Smith is a resident and citizen of the state of New York, and William N, McGill and this plaintiff are residents and citizens of the state of Nevada. The complaint further alleges (2) that ever since on or about the 16th day of October, A. D. 1890, this plaintiff has been, and now is, the owner of, and entitled to the possession of, the following described mining claim and ground, situated in White Pine county, Nev., to wit, the Fair Play mining claim, at one time known as the “Saxton Mine,” situated in Robinson mining district, in White Pine county, Nev., and bounded and particularly described as follows (here follows a specific description by metes and bounds); (3) that plaintiff was in the quiet, peaceable, open, notorious, exclusive, and adverse possession of said mining ground, adverse to each and all of said defendants, and adverse to all the world, from said October 16, A. D. 1890, to on or about the 3d day of December, A. D. 1901; (4) that on or about the 3d day of December, A. D. 1901, while plaintiff was such owner, and so possessed, and entitled to the possession, of said land and mining claim and ground, the said defendants did enter into and upon the same, and oust and eject this plaintiff therefrom, and ever since that day have wrongfully and unlawfully withheld, and still and now do wrongfully and unlawfully withhold, the possession thereof from this plaintiff, to his wrong, injury, and damage in the sum of $1,000.
    In the petition for removal, joined in by all of the defendants except W. N. McGill, it is alleged that the defendant McGill has no interest in the subject-matter or controversy in this action, except as the agent or officer of the defendant the McKinley Mining & Smelting Company, and that his acts in the premises were as an officer of said company, and not otherwise; that the averments in the complaint of a joint claim, ouster, withholding, and liability of defendant McGill with the other defendants, or either of them, “are unfounded in fact, and were not made in good faith, with the expectation of proving them at the trial”; that McGill was improperly and fraudulently joined as a party defendant with petitioners “for the sole and express purpose of defeating the jurisdiction of the United States Circuit Court for the District of Nevada”; that said McGill is not a necessary party to the controversy herein, and has no right, title, or interest in said property or controversy.
    The defendant McGill in this court filed a separate answer, in which he avers “that he is not in possession of said premises mentioned in plaintiff’s complaint under any claim in his own right, but only as an officer and agent of the defendant McKinley Mining & Smelting Company, a corporation of the state of New York, and under the direction and control of said corporation, without any voluntary act of his own; that in his own right he sets up no right, claim, or title or demand to the said premises, save and except that which behooves him and is proper as an agent and officer of the said McKinley Mining & Smelting Company, a corporation, especially disclaiming any and all other right," title, or interest therein” — and denies that he is a proper or necessary party defendant to this suit, and asks to be dismissed with his costs. He also filed an affidavit denying that he ever claimed any right, title, or interest in said property, and further stated that he verily believes “that when said plaintiff commenced this present action said plaintiff well knew that this affiant claimed no right, title, or interest in the property described in the said complaint, or the possession thereof, and had never ousted or ejected said plaintiff therefrom in his own right or for himself, or otherwise than for and on behalf of, and as the act'of, said McKinley Mining & Smelting Company, and that this affiant was made a party defendant to this action by said plaintiff for no other purpose than to prevent the removal of said cause into this court, and to defeat the jurisdiction of this court.”
    The pla'intiff’s counsel filed an affidavit denying “every allegation of fraud contained in defendants’ petition for .the removal of the cause concerning the joining of William N. McGill as a party defendant in this action for the fraudulent purpose of defeating the jurisdiction of this court”; that, as counsel, he advised the naming and joining of all the defendants herein as parties defendant; that at the time of giving said advice he had before him a notice in writing as follows:
    “Notice.
    “To Wm. J. Carothers: You are hereby notified that you are working on the ‘Saxton Mine,’ the sole ownership of which is in ‘The McKinley Mining and Smelting Company,’ and you are hereby further notified by said company to cease working on the same, and upon your failure to so do, you will be held liable for trespass.
    “The McKinley Mining and Smelting Company,
    “By W. N. McGill, Managing Director.”
    And further, that he advised plaintiff that McGill was legally liable for the ouster and trespass, and was a proper party to be made a party defendant in this action.
    E. V. Higgins and Trenmor Coffin, for plaintiff.
    Cheney, Massey & Smith, for defendants.
   HAWLEY, District Judge

(orally). This is a companion case to Carothers v. McKinley M. & S. Co. (D. C.) 116 Fed. 947. The plaintiff, after the court denied the motion to remand in that cause, dismissed the case, and thereafter commenced the present action in the state court. The motion in the présent case clusters around the question as to whether or not William N. McGill is a proper or necessary party defendant, or whether he was joined as a party defendant for the sole purpose of depriving the other defendants of their right to remove the cause to this court on the ground of the diversity of citizenship existing between them and the plaintiff. There is really no controversy as to the facts. There is no pretense on the part of the plaintiff that William N. McGill, as a party defendant, had any interest in the property involved in this suit. Plaintiff simply contends that McGill is a proper and necessary party because he was a wrongful actor, and actively participated in ousting him from the possession of the mining • ground in controversy. He seeks to maintain the position contended for upon the general principle, often applied in cases of tort and trespass, that, where the alleged wrongful act is of such a nature or character that it might have been committed by tw<3 or more persons, the injured party may bring his action separately or jointly against all'or any of the persons who wrongfully contributed, as actors, directors, aiders, or abettors, in the commission of the wrongful act, because in such cases the parties participating in the wrongful act are jointly and severally liable for the acts of each and of all. Authorities in support of this general principle can be found in nearly all the states, and are too numerous to require citation. Reference, however, is here made to Cooley on Torts (2d Ed.) 136; 21 Ency. Pl. & Pr. 806, 807, where many of the authorities upon this subject are cited.

Do the facts of this case bring it within this general rule? It may be admitted that if the case had been presented upon the complaint alone, and the right of removal rested solely upon the diversity of citizenship therein alleged, the cause would have to be remanded. The complaint states a joint cause of action against all of the defendants. This court would not, in such a case, inquire, on a motion to remand, either as to the truth of the allegations in the pleadings, or the sufficiency of the complaint, or whether it states a good cause of action. Hax v. Caspar (C. C.) 31 Fed. 499; Camprelle v. Balbach (C. C.) 46 Fed. 81. The law is well settled that a defendant cannot make an action several, which plaintiff has elected to make joint. Mitchell v. Smale, 140 U. S. 406, 409, 11 Sup. Ct. 819, 35 L. Ed; 442; Torrence v. Shedd, 144 U. S. 527, 530, 12 Sup. Ct. 726, 36 L. Ed. 528, and authorities there cited; Railway Co. v. Dixon, 179 U. S. 131, 138, 21 Sup. Ct. 67, 45 L. Ed. 121, and authorities there cited. But this case does not rest alone upon the complaint. The petition alleges, and the proofs show, without controversy, that the plaintiff well knew before he commenced the action that McGill, in all that he did, acted solely as the managing agent of the McKinley Mining & .Smelting Company. The action is one of ejectment, pare and simple. It is not claimed that McGill forcibly ejected plaintiff from the premises, or committed any assault upon him. The affidavit on behalf of plaintiff shows what McGill did. He served the notice set forth in the statement of facts, as the managing director of the McKinley Mining & Smelting Company. His act in serving this notice was the act of the corporation. By the notice plaintiff was informed that the sole ownership of the mine was in the corporation, and plaintiff was “notified by said company to cease working upon” the mine, and thát if he failed to do so he would be held “liable for trespass.” It would be a misnomer to call McGill’s act in serving this notice a tort for which he could be held liable under the general principles of the law before referred to. In the multitude of cases cited by plaintiff, I find none relating to a state of facts such as are presented here. They nearly all relate to cases of tort, trespass, seizure of or injury to the person or real or personal estate of the plaintiff; and the correctness of the general rule as applied to such cases cannot be questioned. To illustrate and make clear this proposition, a brief reference to the facts of a few of the cases cited by plaintiff may be referred to. Thus, in Welsh v. Stewart, 31 Mo. App. 376, the broad principle is announced that it is no answer to an action for a trespass that the defendant was acting as agent or contractor for another; that in such cases all participants are liable as principals. But what were the facts? The case, as stated in the complaint, was that the plaintiff occupied certain premises for business purposes, and while lawfully in possession thereof the defendants, with force and arms, wrongfully and unlawfully entered upon them, and tore them down; causing a large amount of dirt, timbers, and débris to fall into the building, breaking and defacing the plaintiff’s furniture, and injuring him in his person, etc. In Brown v. Coxe Bros. & Co. (C. C.) 75 Fed. 689, the plaintiff was injured, while employed on a steamboat by the falling of a coal bucket operated by one C. It was alleged that C. was negligent in using defective machinery, and that the steamship company was negligent in not providing him a safe place to work and in not warning him of his danger, and it was held that the liability was joint as well as several. Kane v. Indianapolis (C. C.) 82 Fed. 770, was of a like character — to recover damages for injuries received from a defective step on a sidewalk — and it was held that the owner of the lot and the contractor for making repairs thereon could be jointly sued. To the same effect, see Kansas City R. R. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963. In Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331, the action was for the wrongful, unlawful, and malicious acts of parties who had conspired together, an'd caused an attachment to be issued and levied upon plaintiff’s property.

The action of ejectment can only be maintained against the real party in possession; that is, against the person who withholds the possession from the plaintiff. Such a person, as a matter of fact, may not be in the actual, personal occupancy of the premises, yet, in the eye of the law, may be in the possession through his agents or servants; and" the general rule undoubtedly is that a mere agent, servant, or employe, having no interest, and claiming none, in the premises, acting solely as the representative of another, and only in that manner occupying and being personally on the premises, cannot be sued in an action of ejectment brought to recover them. “For such facts and circumstances only go to show that the employer, and not the servant or employé, is the party in possession, and, of course, answerable in that action.” Polack v. Mansfield, 44 Cal. 36, 39, 13 Am. Rep. 151.

In Hawkins v. Reichert, 28 Cal. 534, 537, the court said:

“It will be readily seen that a mere servant or employs may, in one sense, have the occupation of the premises of which he has no control, and in which he claims no right; but his occupation is the occupation of his employer, within the meaning of that term as employed when treating of the action of ejectment.”

It is apparent from the facts of this case that it is the corporation, not the defendant McGill, that withholds the possession of the premises from the plaintiff.

The case, as presented, is of such a character as to convince this court that McGill is not in any sense a proper party to this action. He is certainly not an indispensable or necessary party defendant. Hicklin v. Marco, 6 C. C. A. 10, 56 Fed. 549, 552, and authorities there cited. His name must therefore have been inserted as a party defendant for the sole purpose of preventing a removal from the state court. It is true that the affidavit on behalf of the plaintiff denies “each and every allegation of fraud,” etc.; but, as was said by Lurton, Circuit Judge, in Arrowsmith v. Nashville & D. R. Co. (C. C.) 57 Fed. 165, 169:

“If, in point of fact, the plaintiff has no cause of action whatever against the resident defendant, and such defendant has been joined as a defendant with the sole purpose of defeating the right of the real defendant to remove the action against it to the circuit court of the United States, then such misjoinder operates as a legal fraud, and will not be permitted to deprive the nonresident defendant of its constitutional right of removal.”

In Dow v. Bradstreet Co. (C. C.) 46 Fed. 824, Shiras, J., in referring to this subject, after stating that the ruling of Mr. Justice Miller in Arapahoe Co. v. Ry. Co., 4 Dill. 277, Fed. Cas. No. 502 (which is substantially the same as expressed in the Arrowsmith Case, above quoted), was cited approvingly by the Supreme Court in Walden v. Skinner, 101 U. S. 577, 589, 25 L. Ed. 963, said:

“The reasoning which sustains the doctrine, which is now too firmly established to be called in question, that, in determining the jurisdiction of the circuit court of the United States, regard will be had only to the citizenship of the real parties in interest, disregarding wholly all nominal or immaterial parties upon the record, seems to me to be equally applicable to cases wherein it is made to appear that a party having in fact no interest in, or actual connection with, the subject of litigation, has been joined as a party with those actually interested for the sole purpose of defeating the jurisdiction of the federal court. A fraud" of this nature, if successful, deprives the citizen of a right conferred upon him by the Constitution and laws of the United States, and it certainly must be true that it cannot be perpetrated without a remedy existing for its correction. Unless this be so, then it is possible to defeat in every instance the right of removal, when the same depends upon the citizenship of the adversary parties, by the easy device of joining as a party one who has no interest in the case, but who. is a citizen of the same state as the plaintiff.”

And cites several authorities in support of the views expressed by him. See, also, Prince v. Railroad Co. (C. C.) 98 Fed. 1, 3; McCormick v. Railroad Co. (C. C.) 100 Fed. 250, 252; Loop v. Winters’ Estate (C. C.) 115 Fed. 362, 366; Garrard v. Silver Peak Mines (C. C.) 76 Fed. 1, 3, and authorities there cited.

The motion to remand is denied.  