Opinion
Chas. M. Fouts, of Seattle, Wash., for plaintiff.
Donworth, Todd & Higgins, of Seattle, Wash., for defendants Seattle & R.V. Ry. Co. and Bruell.
NETERER, District Judge (after stating the facts as above).
This court said, in Charroin v. Romort Mfg. Co., 236 F. 1011, 1012:
'The question of jurisdiction, however, is one which the court is bound to ask and answer for itself, even when not otherwise suggested, and without respect to the relation of the parties. Mansfield, etc., Ry. Co. v. Swan, 111 U.S. 379, 4 Sup.Ct. 510, 28 L.Ed. 462; Chicago, Burlington & Q.R. Co. v. Willard, 220 U.S. 413, 31 Sup.Ct. 460, 55 L.Ed. 521. The jurisdiction of the court is limited, and the court is powerless to determine an issue not within its jurisdiction, and lack of jurisdiction will defeat an action, even though such lack may not be discovered until the cause finally appears before the Supreme Court of the United States.'
The complaint charges concurrent negligence on the part of the motorman and conductor and the railway company. The plaintiffs have a right to sue either or all of the parties. The fact that the defendant Schimmeyer may not be able to pay a judgment at this time does not prevent the plaintiffs from obtaining a judgment in the hope that he may be able to pay at some future time, nor can the court on this motion to remand pass upon the sufficiency of the complaint, and say that the conclusion pleaded that the deceased was the support of the plaintiffs is insufficient; in any event it would be an idle thing, in view of the record that the relation of brother and sister is sustained. Section 183--1, Rem. Comp. Stat. Wash.
The motion to remand is granted.