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Waco v. United States Fidelity & Guaranty Co.

Supreme Court of the United States

October 9, 1934, Argued ; November 5, 1934, Decided

No. 5


 [*141]   [**6]   [***244]  MR. JUSTICE ROBERTS delivered the opinion of the Court.

Curtis Boggs, a citizen  [****2]  of Texas, brought suit in a state court against Combs & Glade, contractors, citizens of Texas, and the City of Waco, Texas, for damages asserted to have been caused by collision with a street obstruction. The City by cross-action vouched in the Fidelity Company, respondent, a citizen of Maryland, surety on a bond of Combs & Glade, alleging that company was liable under the bond to pay whatever amount might be adjudged due by the City by reason of the fault of the contractors. The City prayed that if, upon the trial, the plaintiff should recover against it, judgment over should be rendered against the company for a like amount. The company removed the cause to the federal court on the ground that as to it a separable controversy existed.

The plaintiff, after removal, presented a motion in the District Court in which he asserted that no separable  [***245]  controversy existed, since the Fidelity Company was not an original party, but was brought into the case by cross-complaint; that the company was improperly joined under state law and such joinder could not give the federal  [*142]  court jurisdiction; that the cross-action and the removal proceeding were collusively filed to deprive  [****3]  the state court of jurisdiction; that no separable controversy was presented, as the cause of action set up by the cross-complaint could not proceed to trial separately from the main action, but was ancillary thereto, judgment against Combs & Glade being a prerequisite to any judgment against the company. The prayer was "that this entire cause be remanded to the said State Court of the State of Texas, and in the alternative that the suit of this plaintiff against the defendants Combs and Glade and the City of Waco be remanded to said court, and also in the alternative that  [**7]  the suit as against the United States Fidelity and Guaranty Company by the City of Waco, as evidenced by the cross complaint of the City of Waco, be dismissed and the balance of this action be remanded to the said State Court."

The District Court entered a single decree embodying three separate orders. First, being of the opinion that the record presented a separable controversy between the City and the Fidelity Company, it overruled the motion to remand. Secondly, reciting that the motion to dismiss the cross-complaint had come on to be heard, it found that as to the plaintiff's cause of action the Fidelity  [****4]  Company was an unnecessary and improper party, and granted the motion. Thirdly, since, upon that dismissal, there was no diversity of citizenship of the remaining parties, the court held it lacked jurisdiction, and remanded the cause to the state court.

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293 U.S. 140 *; 55 S. Ct. 6 **; 79 L. Ed. 244 ***; 1934 U.S. LEXIS 966 ****



 CERTIORARI, 292 U.S. 618, to review a judgment dismissing an appeal from a judgment of the District Court.

Disposition:  67 F.2d 785, reversed.


cross-action, cross-complaint, contractors, vouched, decree