ON PETITION FOR REHEARING.
Mr. Justice Gabbertdelivered the opinion of the court.
In. the petition for removal it is alleged, in substance, that the facts alleged in the complaint do not *32constitute joint and concurring negligenpe upon the part of the Mining Company, and the resident defendants, and that the latter are sham and fictitious, and were fraudulently joined with the Mining Company for the purpose of presenting the removal of the cause to the federal court. We have determined that -the cause should have been removed upon the ground that the joinder of the resident defendants was fraudulent, and that they were sham and fictitious because no cause of action was stated against them or either of them for which the company is responsible. This, it is claimed, is erroneous, for the reason that plaintiff having elected to sue the parties jointly in tort, the failure to state a joint cause of action against the 0 Mining Company and the resident defendants does not render the causé removable.
In support of this contention two propositions are advanced. First: That a defendant has no right to say that an action shall be several which the plaintiff seeks to make joint, or that, even though the joinder /nay not have been proper, a severable controversy between the plaintiff and the Mining Company is not presented, when the plaintiff has elected to sue all jointly; and, second, that the joinder of resident defendants against whom no cause of action is stated, is not a fraudulent joinder. In brief, these propositions are, that a failure to state a cause of action against the resident defendants is not alone ground for removal, and a separable controversy apparent on its face is not alone ground for removal. In support of these propositions, the following cases are cited: Ches. & O. Ry. Co. v. Dixon, 179 U. S. 131; Alabama-Gt. So. Ry. Co. v. Thompson, 200 U. S. 206; Cin., N. O, & T. P. Ry. Co. v. Bohon, ibid. 221; Ill. Central R. R. Co. v. Sheegog, 215 U. S. 308.
All of these cases determine, so far as any question is involved in the present case, that where a plain*33tiff sues a non-resident corporation in a state court, joining therein the servants of such corporation, residents of the state, with plaintiff, and states a joint cause of action in his complaint, a severable controversy is not presented on the face of that pleading. This is not a new rule. On the contrary, the rule has always been, that -if from the averments of the complaint filed in the state court, it appears that under the laws of the state where the action is commenced, or the decisions of its highest court, a joint cause of action is stated against the non-resident and resident defendants, the cause is not removable upon the ground of severable controversy alone. In none of the above cases was it charged that the joinder of the resident was fraudulent except in the Sheegog case; but in that case it was determined that a joint cause of action against the defendants was stated, but that the averments in the petition for removal upon the ground that the joinder was fraudulent, were insufficient. That in considering the question of the right of removal in these cases the court had in mind that a claim that the joinder was fraudulent would be material, is evident from the statement in the Dixon case, to the effect that the petition for removal did not charge fraud, and that in the Thompson case the court used this significant language:
“It is to be remembered that we are not now dealing with joinders, which are shown by the petition for removal, or otherwise, to be attempts to sue in the state courts with a view to defeat federal jurisdiction. In such cases entirely different questions arise, and the federal courts may and should take such action as will defeat attempts to wrongfully deprive parties entitled to sue in the federal courts of the protection of their rights in those tribunals.”
So that these cases in no sense change the rule *34with respect to removal of causes based upon the ground of fraudulent joinder.
In the case at bar the charge is made that the Individual defendants were fraudulently joined for the purpose of preventing a removal of the cause to the federal court. Where the fact is patent upon the face of the pleadings and record in a suit that an improper party has been joined, or a sham cause of action has been injected into the case for the sole purpose of defeating: the jurisdiction of the federal court, the court may find the attempt to defeat the jurisdiction «if the federal court from the record alone, and prevent Its perpetration. We have determined that a joint cause of action is not stated against the Mining Company and the individual defendants, Unquestionably a plaintiff may join parties defendant for the sole purpose, of preventing removal, if he has a joint cause of action; but where.he sues parties jointly, and wholly fails to state a joint cause of action, it being evident 'from the complaint itself that the reason the resident defendants were joined was to prevent a removal, and that a sham cause of action was injected into the case for this sole purpose, this is sufficient upon which to base the conclusion, when the petition for removal presents it, that the joinder was fraudulent. — Reinartson v. Chi. & Gt. W. Ry. Co., 174 Fed. 707; Hukill v. Maysville & B. S. R. Co., 72 Fed. 745; Floyt v. Shenango Furnace Co., 186 Fed. 539.
The petition for rehearing is denied.
Rehearing denied.
Mr. Justice Musser and Mr. Justice Hill dissent.