(dissenting).
Although the petition for removal and the affidavits resisting the motion to remand allege and state facts to support the contention that defendant Hawksley was fraudulently joined in the suit to prevent removal from the state court, these allegations are not denied.
Hawksley in his affidavit stated that the plaintiff both before and after the institution of the suit had stated to him that his right of action was against the publisher of “Pic” magazine; that he could not recover from Hawksley, and plaintiff wanted him to understand that he did not want any recovery from him. These specific allegations also are not denied.
Reliance or reversal here is rested on inferences based on vague and uncertain allegations of the complaint which, it is claimed, connect Plawksley with the publication of the libel. The complaint at different places merely states that Hawksley was a resident agent of the other defendants. No specific act of Hawksley’s connecting him with the publication of the libel is noted other than a paragraph which sets forth that Hawksley had advised certain members of the Athletic Round Table that “Pic” in its issue of December, 1942, would publish an anonymous article; that said members were informed generally of what the contents of said article would be; and that it was certain to enjoy a large circulation in Spokane and vicinity because of the wide acquaintanceship of plaintiff in his official capacity as president of the Athletic Round Table. The paragraph does not set forth what the contents of said article would be, nor does it say that it was the same or similar to the one of which plaintiff complains.
On this set of facts the matter was submitted to the District Court which held that no cause of action against Hawksley was stated and that upon the showing presented the removal was sustained.
The further issue of service on the defendant Street & Smith Publications, Inc., was presented at the same time and the District Court held on the undisputed showing made that there was no service on said defendant, and the alleged service was quashed and the case as to this defendant, Street & Smith Publications, Inc., was dismissed without prejudice.
Under the circumstances and in this state of the record I think the action of the District Court should be sustained.