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JONES v. CAPERS

October 17, 1958

J. HAL JONES; A.J. HALBROOK; EUNICE LOVELL; HOWELL JOHNSON; AND E.H. SONNEMAN, FOR THE USE AND BENEFIT OF TAXPAYERS OF WASHINGTON COUNTY, ARKANSAS, PLAINTIFFS,
v.
A.B. CAPERS, D/B/A A.B. CAPERS COMPANY; A.B. CAPERS COMPANY, INC.; AND HARTFORD ACCIDENT & INDEMNITY COMPANY, DEFENDANTS.



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 court.

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 to removal.

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 assessment. 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, Arkansas.

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 Washington County.

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
  Company, Inc."

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 Company, Inc.

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. Capers, alleged:

    "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 ...

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