Knott v. McGilvray

Citations

• 124 Cal. 128
• 56 P. 789
• 1899 Cal. LEXIS 956

Syllabus

<p>Action for Death—Parties—Surviving Widow—Heirs— Waiver of Nonjoinder.—An action for the death of a husband brought by the surviving widow is brought by an heir of the deceased, who may be the sole heir; and where the complaint does not show on its face that there were other heirs, and the answer does not plead nonjoinder of other heirs, the objection to such nonjoinder is waived.</p> <p>Id.—Negligent Injury to Traveler—Joinder of Resident and Nonresident Defendants—Nonsuit—Removal to Circuit Court.—In an action for a death caused by' negligent injury to the deceased while upon the sidewalk passing a building in process of erection, where the resident owner of the building and the nonresident contractor employed in erecting it were joined as co-defendants, in good faith, and not for the fraudulent purpose of preventing a removal of the cause to the circuit court of the United States, and the cause had been removed to that court upon an insufficient petition, and remanded for that reason, the contractor is not subsequently entitled to a. removal of the cause merely because upon the trial the resident owner obtains a non-suit, on the ground that the nonresident defendant was an independent contractor, who was alone responsible for the death.</p> <p>Id.—Petition for Removal—Record must Disclose Right.—The mere filing of a petition for removal of a cause to the circuit court of the United States is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has under the statute the right to remove the suit.</p> <p>Id.—Conflicting Affidavits—Presumption as to Finding.—Where affidavits by the defendant contractor and conflicting counter-affidavits by the plaintiff were filed in reference to the right of removal sought by such defendant as a nonresident, after the granting of the nonsuit to the owner of the building, upon the refusal of the court to grant the removal, it must be presumed that it found the facts to b