Opinion
2 Div. 892.
March 24, 1927. Rehearing Denied April 21, 1927.
Appeal from Circuit Court, Hale County; S. F. Hobbs, Judge.
Thos. E. Knight, of Greensboro, and Harsh Harsh, of Birmingham, for appellant.
Unless entitled to remove the cause at time of filing petition, the party seeking removal is not entitled to same by filing a new petition showing a changed situation. Manning v. Amy, 140 U.S. 137, 11 S.Ct. 757, 35 L.Ed. 387. Removal, after sustaining demurrer to evidence on behalf of resident defendant, is error. Amer. C. F. Co. v. Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 596; Southern R. Co. v. Lloyd, 239 U.S. 496, 36 S.Ct. 210, 60 L.Ed. 405. It is too late to file petition to remove after trial. Supreme Lodge, etc., v. Gustin, 202 Ala. 249, 80 So. 84; Whitcomb v. Smithson, 175 U.S. 635, 20 S.Ct. 248, 44 L.Ed. 303; K. C. S. B. R. Co. v. Herman, 187 U.S. 63, 23 S.Ct. 24, 47 L.Ed. 76; Moeller v. Southern Pac. (D.C.) 211 F. 240; Lathrop Co. v. Int. C. I. Co., 215 U.S. 246, 30 S.Ct. 76, 54 L.Ed. 177.
Pettus, Fuller Lapsley, of Selma, for appellees.
Counsel discuss the questions, but without citing authorities.
The appeal in this case is from an order of the circuit court of Hale county removing the cause from that court to the United States District Court for the Northern Division of the Southern District of Alabama, on the petition of the defendant the Southern Railway Company.
Under the holding of this court in the case of Ex parte Southern Telegraph Co., 73 Ala. 564, which is in accord with the holdings of a majority of the state courts of last resort, the order of removal is such a final judgment as will support an appeal. 23 R. C. L. 834, § 203.
There is no contention that the resident defendant, McDonald, was fraudulently joined, to prevent a removal, but the appellee's contention is that the effect of the order of the circuit court sustaining the demurrer of the resident defendant to the evidence was to eliminate that defendant as a party, leaving the case one solely between the plaintiff and the Southern Railway Company.
Aside from the fact that, at the time of the refiling of the petition for removal, the court had not entered a judgment in favor of the defendant McDonald, but at most had merely determined, on the demurrer to the evidence, that plaintiff's evidence did not justify a recovery against him, he was still a party to the record, and the suit was not a removable controversy wholly between citizens of different states. Under the federal law, the elimination of a resident defendant, who on the face of the pleading is properly joined, in the absence of an averment in the petition for removal that such defendant was fraudulently joined to prevent a removal to constitute the case a removable controversy, the elimination of the resident party must be by the voluntary act of the plaintiff. American Car Foundry Co. v. Agnes Kettelhake, 236 U.S. 311, 35 S.Ct. 355, 59 L.Ed. 594; Southern Railway Co. v. Lloyd, 239 U.S. 496, 36 S.Ct. 210, 60 L.Ed. 402; Great Northern Ry. Co. v. Alexander, Adm'r, 246 U.S. 276, 38 S.Ct. 237, 62 L.Ed. 713.
The conclusion here is that the circuit court, in making the order of removal, erred, and for this error the judgment must be reversed. The other questions argued are such as may not arise upon another trial, and for this reason they will not be discussed.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.