Statement of the Case.

of the United States, in which they stated that the plaintiffs and the defendant Larson were citizens of Minnesota, and the intervenors and petitioners citizens of Illinois, and

"5. That such taking, detention, and ultimate sale were all done by said Jacob Larson, in his official capacity as such sheriff, and at the request of your petitioners and by virtue of a writ of execution duly allowed and issued out of the District Court of the Tenth Judicial District of the state of Minnesota, for the county of Freeborn, in an action therein pending in that court between said petitioner, The Thorn Wire Hedge Company, as plaintiff, and one George A. Patrick, as defendant, and under indemnity furnished by said Thorn Wire Hedge Company, with said petitioners, J. W. Calkins, Aaron K. Stiles, and Gary G. Calkins, as bondsmen and sureties therein to such sheriff, pursuant to the statute in such case made and provided, and to save him harmless from all damages and costs for and on account of so doing; and, accordingly, said sheriff has duly notified said petitioners to defend this said action, and accordingly said petitioners, pursuant to the statute in such case made and provided, have duly intervened in said action as parties defendant thereto, and have duly made and filed in said action their pleading as such intervening parties defendant.

"6. That, in virtue of said facts, said defendant, Jacob Larson, was at all such times and in all said matters, so far as said plaintiffs are concerned, the mere agent of said petitioners provided for them by law in such cases, and there can be a final determination of the controversy in said action, so far as concerns said petitioners, without the presence of such agent, said defendant Jacob Larson, and, in fact, the real controversy in said action is wholly between said plaintiffs on the one side and said petitioners on the other side, and the same can be fully determined as between them.

"7. That your petitioners have reason to believe, and do believe, that, from prejudice as well as from local influence, they will not be able to obtain justice in said action in said state court.

"Wherefore said petitioners pray that said action be re

Argument for Plaintiff's in Error.

moved into the United States Circuit Court to be held within and for the District of Minnesota, and herewith present the bond and surety as in such cases required."

Upon this petition an order of removal was made and the suit entered in the Circuit Court December 11, 1886; and, on the 21st of the same month, it was remanded on motion of Fuller and Patrick. To reverse that order this writ of error was brought.

Mr. Charles D. Kerr for plaintiffs in error.

I. The liability of the intervenors in this action is measured by the terms of the contract of indemnity. The law relating to the responsibility of joint wrongdoers, or of those who adopt and ratify the wrongful acts of others, committed in their behalf, does not indicate the rule or measure of damages to be adjudged against the appellants. So far as they are concerned, it is, except as to the form of the proceedings and of the judgment, as though this were an action prosecuted by the sheriff upon the indemnity bonds, after his right to recover upon them had been established.

Hence the amount of the recovery against the principals and sureties in the bond is limited to the penal sum named therein, with interest from the time when their liability became fixed and ascertained. Lasher v. Getman, 30 Minn. 321. It is apparent, therefore, without argument, that there is a separate controversy here between the intervenors, Thorn Wire Hedge Company and its bondsmen on the one side, and the sheriff, Larson, on the other, which either of said parties had a right to remove to the Federal court.

The liability of the intervenors to the sheriff upon their bond of indemnity is to be determined. This is ex contractu, and is limited by the amount of the bond.

II. There is another phase of this controversy between the intervenors and the sheriff, Larson.

The complaint, in effect, alleges a malicious, wrongful and wanton abuse of his process on the part of the sheriff. Now it is clear that the statute we have cited does not contemplate

Argument for Plaintiffs in Error.

the giving of a bond by the execution plaintiff to indemnify the sheriff against such acts as these, nor did the bond in this case have any such effect, nor are the intervening defendants who seek their rights in this court responsible for such conduct on the part of the sheriff.

Manifestly then, judgment might, in this case, be recovered against the sheriff and yet the non-resident intervenors go free, which brings the case within the reasoning of Beuttel v. Chicago, Milwaukee & St. Paul Railway, 26 Fed. Rep. 510.

It is not clear, by the record sent up from the state court, under what statute the intervention in this suit was made. However made, the intervenors can, not only resist the claim of the plaintiff, but may have such relief as the facts may warrant against their codefendants. It is well settled that, for the purpose of removal, parties may be transferred and arranged in their proper positions, with reference to their interest in the controversy, without regard to their formal position as plaintiffs or defendants on the record. Burke v. Flood, 6 Sawyer, 220.

III. Aside from this separate controversy between the intervenors and their codefendant, Larson, we think the controversy between them and the plaintiffs is separable in its nature. The effect of such an intervention as this, is to shift from the sheriff to the intervenors the entire burden and responsibility of the suit, so far as the official action of the officer is concerned. The moment it is made the sheriff becomes, to all intents and purposes, a merely formal or nominal party. The real controversy thenceforth is with the intervenors, and the presence of the sheriff, who is conditionally liable, is not necessary to its determination. Greene v. Klinger, 10 Fed. Rep. 69; Texas v. Lewis, 12 Fed. Rep. 1. See also In re the Iowa

Minnesota Construction Co., 10 Fed. Rep. 401; Beuttel v. Chicago, Milwaukee, &c., Railway, 26 Fed. Rep. 50; Mayor of New York v. Steamboat Co., 94 Fed. Rep. 817; Town of Aroma v. Auditor, 9 Bissell, 289; Removal Cases, 100 U. S. 457; Wood v. Davis, 18 How. 467; Sioux City Railway v. Chicago, &c., Railway, 27 Fed. Rep. 770; Foss v. Bank of Denver, 1 McCrary, 474; Allen v. Ryerson, 2 Dillon, 501.

Opinion of the Court.

It will be observed that in all of the Removal Cases, 100 U. S. 457, suit was commenced by the plaintiff against both the resident and non-resident defendants. He had elected, so far as it lay in his power, to recover against them jointly.

Those cases, and all which have followed in the same line, have proceeded upon the reasoning, that although liability in tort is several, as well as joint, yet the plaintiff having elected. to make it joint, it did not lie in the power of any of the defendants to make it several, so as to create the separate controversy necessary as a groundwork for removal under the act of 1875.

This reasoning is not applicable in the case at bar, because the plaintiff did not elect to sue the defendants jointly. His election, so far as he could exercise it, was precisely the contrary. He made his cause of action several, and cannot now claim that it is joint by virtue of any election on his part.

Moreover, the non-resident defendant, by his intervention, has tendered to this plaintiff a separate and distinct controversy on the question of fraud, upon which separate controversy the plaintiff, by his reply, has joined issue, and he cannot now prevent the intervening defendants from removing that controversy to this court. He is without the logic, and therefore without the application of the decisions in the Tredt and Carson cases. This is plainly indicated in Boyd v. Gill, 19 Fed. Rep. 145.

It is settled that the law of 1866 is practically repealed by the law of 1875. Hyde v. Ruble, 104 U. S. 407; King v. Cornell, 106 U. S. 395.

Mr. Thomas Wilson for defendants in error.

MR. CHIEF JUSTICE WAITE, after stating the case as above reported, delivered the opinion of the court.

We have been referred by the parties to the following sections of c. 66 of the General Statutes (1878) of Minnesota as authority for the intervention of the execution creditor and his sureties in the action:

Opinion of the Court.

"SECTION 131. Intervention. Any person who has an interest in the matter at litigation, in the success of either of the parties to the action, or against either or both, may become a party to any action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, or either of them, either before or after issue has been joined in the cause, and before the trial commences. The court shall determine

upon the issues made by the intervention at the same time that the issue in the main action is decided, and the intervenor has no right to delay; and if the claim of the intervenor is not sustained, he shall pay all the costs of the intervention. The intervention shall be by complaint, which must set forth the facts on which the intervention rests; and all the pleadings therein shall be governed by the same principles and rules as obtain in other pleadings. But if such complaint is filed during term, the court shall direct a time in which an answer shall be filed thereto.”

"SECTION 154. Claim of property by third person-affidavit-indemnity by plaintiff. If any property levied upon or taken by a sheriff, by virtue of a writ of execution, attachment, or other process, is claimed by any other person than the defendant or his agent, and such person, his agent or attorney, makes affidavit of his title thereto, or right to the possession thereof, stating the value thereof, and the ground of such title or right, the sheriff may release such levy or taking, unless the plaintiff, on demand, indemnify the sheriff against such claim, by bond executed by two sufficient sureties, accompanied by their affidavit that they are each worth double the value of the property as specified in the affidavit of the claimant of such property, and are freeholders and residents of the county; and no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless so made; and, notwithstanding such claim, when so made, he may retain such property under levy a reasonable time to demand such indemnity.