Evans v. Felton

Defendant’s contention in support of the proposition that the controversy herein is severable as to him is that the declaration fails to state a cause of action as against him, while it does state a good cause of action as against the other defendant. The declaration charges that the two defendants jointly committed the tort. It is admitted that, if the averments of fact were *177sufficient to support this charge, the cause would not be severalile. Railroad Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203. I hold that, under the facts in this case, where the declaration in form charges a joint tort against two or more defendants, the question of whether or not the declaration states facts sufficient to establish a good cause of action against either of the defendants is one for the determination of the state court. The cause is remanded.