American Car & Foundry Co. v. Kettlehake

Citations

• 236 U.S. 311
• 35 S. Ct. 355
• 59 L. Ed. 594
• 1915 U.S. LEXIS 1763

Syllabus

<p>Where there is a joint cause of action against defendants resident of plaintiff’s State and a non-resident defendant, in order to make the •case removable as to the latter because of the dismissal as to the former, the discontinuance as to the resident .defendants must have been the voluntary act of the plaintiff and have so taken the resident defendants out of the case as to leave the controversy one wholly between the plaintiff and the non-resident defendant.</p> <p>Under the practice in Missouri, when the court has sustained demurrers by some of the defendants and allowed plaintiff to take an involuntary non-suit as against them with leave to set it aside, the case is not then ended as against those defendants, nor is it until after af-firmance by the appellate court or the expiration of plaintiff’s time to appeal; the controversy does not become one solely between the plaintiff and the other defendants, and even if the latter are nonresidents of plaintiff’s State the case is not removable as to them. Powers v. Chesapeake & Ohio Ry., 169 U. S. 92, distinguished.</p>