The opinion of the court was delivered by: John E. Miller, District Judge.
The motion of plaintiffs to remand this case is now before the
The complaint was filed in the Circuit Court in and for
Washington County, Arkansas, on August 26, 1958. On September 12,
1958, the defendant, A.B. Capers, d/b/a A.B. Capers Company,
filed his petition for removal.
On September 16, 1958, the plaintiffs filed their motion to
remand, and on September 23, 1958, the defendant, A.B. Capers,
filed an amendment to his petition for removal by which he
tendered to be attached to the original petition additional
summonses and pleadings issued out of, or filed, while the action
was pending in the Circuit Court of Washington County and prior
The pleadings disclose that the plaintiffs are citizens of
Arkansas and reside in Washington County. The defendant, A.B.
Capers, is a citizen and resident of the State of Texas, and on
December 26, 1956, was engaged, under the name of A.B. Capers
Company, in the business of appraising property for tax
The defendant, Hartford Accident & Indemnity Company, is an
insurance corporation organized under the laws of, and with its
principal place of business in, the State of Connecticut.
The defendant, A.B. Capers Company, Inc., is a corporation
organized, existing, and doing business under and by virtue of
the laws of Arkansas, with a branch office in Washington County,
On December 26, 1956, the defendant, A.B. Capers, entered into
a written contract with Washington County, Arkansas, in which he
agreed for a certain consideration to appraise all real property
and all business, professional, commercial and industrial
property and farm equipment located within Washington County. The
total consideration was $85,000, to be paid to the "appraiser" by
In accordance with the provisions of the contract the
defendant, A.B. Capers, filed a performance bond in which the
said A.B. Capers, his executors, administrators, or assigns
further bound themselves to truly perform, fulfill and keep each
and all of the covenants contained in the contract, and the
defendant, Hartford Accident & Indemnity Company, as surety
guaranteed the performance of the contract by execution of the
bond in the sum of $85,000.
In paragraph 4 of the complaint of plaintiffs it is alleged:
"On or about the 15th day of January, 1957, the
defendant A.B. Capers formed, created, and organized
the defendant A.B. Capers Company, Inc., and
immediately upon the incorporation of said
corporation the defendant A.B. Capers Company, Inc.
purported to take over and assume all of the
covenants and agreements of the defendant A.B. Capers
set forth and contained in said written contract and
became obligated to perform the same, and all
payments made by Washington County pursuant to said
contract were paid to the defendant A.B. Capers
In paragraph 5 of the complaint the plaintiffs alleged that the
defendants, A.B. Capers, and A.B. Capers Company, Inc., made and
filed claims against Washington County, between the dates of
February 2, 1957, and March 19, 1958, for a total sum of
$93,900.02, and that said claims were paid by Washington County,
Arkansas, to the said defendants, A.B. Capers and A.B. Capers
The prayer of the complaint is that the plaintiffs recover of
and from each of the defendants for the use and benefit of
themselves and all other taxpayers of Washington County the sum
of $93,900.02, and for their costs.
In paragraph 5 of the petition for removal the defendant, A.B.
"Petitioner further states that plaintiffs have
joined as a defendant in said action, in addition to
petitioner and said insurance company, A.B. Capers
Company, Inc., a corporation, organized under the
laws of the State of Arkansas, and the joinder of the
said A.B. Capers Company, Inc. as a defendant is
fraudulent and done solely for the purpose of
attempting to prevent removal of this action to this
court, because it appears from the complaint, and
exhibits thereto, filed by plaintiffs that no cause
of action is stated, or can be stated, against said
A.B. Capers Company, Inc., and the only allegation
undertaking to do so is a mere conclusion of law, and
there are no allegations in the complaint alleging a
joint cause of action against petitioner and said
A.B. Capers Company, Inc., and there is no reasonable
basis existing for believing there is a joint
liability against petitioner and said resident
defendant, and no colorable ground exists showing
that plaintiffs have a real intention to obtain, or
that they can obtain, a joint judgment against
petitioner and said resident defendant, and no ground
exists for securing such joint judgment."
In support of the petition for removal the defendant, A.B.
Capers, contends that the only allegation of liability in the
complaint is contained ...