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 two 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 Ú. 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 that 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 re

ferred 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, II 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, and 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 employé, 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 employé 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.

FREE v. WESTERN UNION TELEGRAPH CO. et al

(Circuit Court, S. D. Iowa, W. D. May 6, 1903.)

No. 503.

1. REMOVAL OF CAUSE-GROUND FOR PREVENTION-DIFFERENT RULE AS TO MEASURE OF DAMAGES.

The right of a plaintiff to prevent a removal from the state court cannot be controlled by the fact that a different rule as to the measure of damages might be observed in the federal courts.

2. SAME JOINT LIABILITY OF RESIDENT EMPLOYÉS.

The unsupported allegation of an unverified petition, that the resident operators of a nonresident telegraph company were jointly liable for a

delay in delivering a message, was insufficient to prevent a removal, where the verified petition for removal was supported by the affidavits of such operators that neither of them were on duty nor had anything to do with either receiving or delaying the message; that the only message received from the alleged sender was addressed, not to plaintiff, but to another party; and that that message was received by another operator.

At Law.

Sallinger & Korte, for plaintiff.
Wright & Call, for defendants.

MCPHERSON, District Judge. The plaintiff has moved to remand this case to the state court, from whence it was removed to this court by the defendant telegraph company, a citizen of New York. The plaintiff and the defendants Mullen and Neely are all citizens of Iowa. More than $2,000 is in controversy.

The defendant company is engaged in doing a commercial telegraph business from points in Indiana to points in Iowa, as well as generally over the country. The plaintiff is a resident of the village of Manning, Iowa, and has been for many years, known by all the people of said village, and residing within a very few blocks of defendant's office in the village. November 3, 1902, the following message was given to defendant's agent at the regular office in Huntington, Indiana, charges prepaid:

"Martin H. Free, Manning, Iowa:

"Huntington, Indiana, Nov. 3, 1902.

"Mother near death's door at Huntington. Am with her. "[Signed]

Ida Whittaker."

The sender of the message, Mrs. Whittaker, is a sister of plaintiff. The message was not delivered to plaintiff until in the night of the 6th, three days after it was deposited with the office at Huntington, Ind., although it was received by the defendants Mullen and Neely, night operators for the company at Manning, Iowa, a few minutes after it was deposited in the office in Indiana. The failure to promptly deliver the message to plaintiff was the result of gross carelessness and negligence of both the company and Mullen and Neely. Had the message been delivered to plaintiff promptly, as it should. have been, plaintiff would have gone to Indiana, and would have seen his mother alive. But he was denied that privilege, because his mother died a few hours before the delivery of the message. By reason thereof he was greatly damaged, because of his mortification, humiliation, and grief. Such is the petition of plaintiff.

The petition for removal by the company and the bond therefor are in the usual form. It is also alleged that defendants Mullen and Neely are sham defendants, and were made defendants wrongfully and illegally, and for the single purpose of preventing the company from removing the case. It is also alleged that defendants Mullen and Neely were in the service of the company but a part of the time in November, 1902, at Manning, Iowa. That the only message received from Ida Whittaker, November 3, 1902, was addressed to Martin H. Freeman, and not M. H. Free, or Martin H. Free. Neither Mullen nor Neely received said message, but the message was

received by one O. J. Colver, the operator in charge of defendant's office, who then was, and still is, a citizen of Colorado. This petition is verified. Accompanying the petition are the affidavits of Mullen and Neely. Each of those parties says that he did not receive the message; had nothing to do with the delay in its delivery; was not on duty when the message was received; but that the said Colver at Manning, Iowa, and he alone, had to do with it. The state court ordered the removal, and the record was filed in due time in this court. The plaintiff moves to remand because the petition for removal, is not properly verified. This objection is wholly without merit: First, because it is verified by one of defendants' counsel, showing himself to be in full charge of the case and possessed of knowledge of all the facts of the case; and, secondly, because a verification is not necessary.

Since the decision of the Dixon Case in 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121, the practice has become quite common, and too general by far, to make some one a codefendant for the sole purpose of preventing the real defendant from trying his case in a circuit court of the United States. And, to prevent the removal, some citizen of the state is named as a codefendant, when the facts are that he was in some way only partially connected with the transaction, and oftentimes because upon some other occasion he had been about the premises.

In this case, by a petition not verified, plaintiff charges that the negligence was the joint and concurrent acts and omissions of the company and Mullen and Neely. But Mullen and Neely, by affidavit, say they were not on duty, received no message from Ida Whittaker; and then they say, and the verified petition for removal recites, that the only message received at that office from the lady was received by O. J. Colver, and that such message was not addressed to plaintiff, but to another name. If these things be so, then, when the message was deposited in the office at Huntington, Ind., it was not addressed to plaintiff, in which event the defendant company, of course, would not be liable. Or if, when deposited in the office in Indiana, the message was addressed to plaintiff, as he says it was, but came to the Iowa office addressed to another party, the company would be liable, if there were damages. And on these facts it is apparent that the change in the name occurred at some relay or transfer office, for which neither Mullen, nor Neely, nor Colver, nor any other person in or about Manning, would in anywise be responsible.

Plaintiff charges that if he had received the message he would have been able to go, and would have gone, to Indiana, and would have seen his mother before her death. He says that the negligent delay in delivering the message prevented him from seeing her. The only results were that he was subjected to mental anguish or grief, bringing upon him damages in a large sum. The message did not occasion any outlay of money, and he did not make any unnecessary trip, and he was not damaged in any way, other than by grief. No doubt herein is the "urgent" reason, although not disclosed by plaintiff, why he deemed it necessary to prevent, at all hazards, a