« AnteriorContinuar »
15 Berger v. Douglas Co., 5 Fed. Rep. 23. But see Lexington v. Butler, 14 Wall. 282; Bushnell v. Kennedy, ġ Wall. 387; Green v. Custard, 23 How. 484.
16 Dimmock v. Doolittle, 29 Fed. Rep. 545. 17 Cushman v. Amador Canal Co., 118 U. S. 58. 18 Leather Manuf. Bank, 121 U. S. 718. 19 Cable v. Ellis, 110 U. S. 339. 20 Bell v. Nunan, 19 Fed. Rep. 229. 21 Ferry v. Merrimac, 18 Fed. Rep. 657; Ferry v. Westfield, 19 Fed. Rep. 155. [Distinguishing Bushnell v. Kennedy, 9 Wall. 392; Lexington v. Butler, 14 Wall. 232: Following Berger v. Douglas County, 5 Fed. Rep. 23; Hardin v. Olson, 14 Fed. Rep. 705.]
22 Vimont v. Chicago & Northwestern R'y Co., 65 Iowa, 513.
§ 95 h. Party in representative character. -As a general rule trustees and executors are to be regarded as active parties. The citizenship of an administratrix to determine jurisdiction is that of herself as an individual; it does not depend upon that of her intestate or upon the the State in which her letters were granted. The right of removal on the ground of citizenship depends on the citizenship of the party alone; and his representative character, or the citizenship of those whom he represents, does not affect it. The superintendent of insurance of a State may remove a cause brought by a citizen of another State before dissolution of the company.
1 Goodnow v. Litchfield, 4 McCrary, 215; Thayer v. Life Association, 112 U. S. 717; Evans v. Faxon, 11 Biss. 175.
2 Continental L. Ins. Co. v. Rhoads, 119 U. S. 237. 3 Whitman v. Hubbell, 24 Blatchf. 240. 4 Life Asso. of America v. Rundle ("Relfe v.Rundle"), 103 U. S. 222.
§ 95 i. Right of substituted party.-A substituted party's right of removal is only such as existed in the original party. So of one who purchases property pend. ente lite and is made a party to the suit. Whatever will bar a removal before he intervenes will bar him afterward, although by his intervention he may have raised a separate controversy.3 A substituted party comes into a suit sub
ject to all the disabilities of him whose place he takes, so far as concerns the right of removal of the cause.
1 Richmond & D. R. Co. v. Findley, 32 Fed. Rep. 641.
4 Cable v. Ellis, 110 U. S. 387; Houston etc. R. A. Co. v. Shirley. 111 U.S. 3.58; Jefferson v. Driver, 117 U. S. 2:2. And see Stewart v. Dunham, 115 U. S. 61; Phelps v. Oaks, 117 U. S, 236.
$ 95 j. All proper and necessary parties must be made parties.- Proper and necessary parties are as much an element of jurisdiction as any of the other elements of it.? Parties required by the statute to be made cannot be said to be merely nominal ones, but must be regarded as necessary parties. A joint cause of action cannot be removed by the defendants unless all join and are citizens of different States froin the plaintiffs. All are affected by the loss by one of his right to remove.3 An action against partners, for money paid to them as such, is not removable, unless all the parties on one side of the controversy unite in the petition for removal. So of an action upon an account presenting a single controversy.5 An action of account against three surviving partners, two of whom are citizens of the same State with the plaintiff, can not be brought in the circuit court against the other surviving partner alone, as all are necessary parties. A bill by a non-resident for an accounting by an executor must join a non-resident, also an executor, but outside the jurisdiction, he having qualified and acted, notwithstanding section 737 of the Revised Statutes allows non-joinder of non-residents not found in the dist ict.? In an action brought in a State court by a citizen of that State against an incorporated company of that State, and a citizen of another State, to compel transfer of stock, the company is a necessary party. 8 In a suit to compel the construction and operation of a railroad on the line originally laid out, the railroad company which had so agreed is a necessary party, although it had leased its line. 9 In a suit to foreclose a mortgage by sale, in which it is sought to charge the mortgage debtor with the payment of any balance of the mortgage debt, the debtor is a necessary party, and if his citizenship stands in the way the suit is not removable. 10 The same principle governs in
case of strict foreclosure brought against the grantee of the mortgagee; the mortgagor is an indispensable party.". A bill praying a foreclosure of a mortgage by sale of land requires the presence of the party holding the legal title. 12 In an action by resident tax-payers against county officials and bond-holders, one of whom is a non-resident, to restrain the collection of a tax and to cancel the bonds, county officials against whom an injunction is scught are to be classed with the plaintiffs in determining the jurisdiction of a Federal court on the ground of citizenship.13 In a suit to restrain the collection of taxes already levied, the sheriff, who was about to enforce the collection, and the county judge were necessary parties, as were the bondholders. 14 In a suit brought to invalidate a tax vot. ed in and of a railroad company, the township trustees and the county treasurer are necessary parties.
Where executors are trustees under a will, they are necessary parties to a suit to set it aside.16 The right depends on the pleadings when the petition is filed unaffected by the fact that a defendant who is a citizen of the same State with one of the plaintiffs may be a proper but not an indispensable party to such controversy."
1 Bland v. Fleeman, 29 Fed. Rep. 669.
8 St. Louis & S. F. R. Co. v. Wilson, 114 U.S. 60; Crump v. Thurber, 115 U. S. 56.
9 Chicago & Northwestern R. Co. v. Crane, 113 U. S. 424.
$ 95 k. Qualification as to citizenship.-Under the first clause of sec. 639, a case cannot be removed unless all
the parties plaintiff are citizens of the State where the suit is brought, and all the defendants are citizens of some other State, or are aliens;l so where three out of four were aliens, the application was denied. If an indispensable party was a citizen of the same State with the plaintiff, jurisdiction would be defeated;3 so if a citizen of a State is joined with a citizen of another State, 4 or where suit is brought by an alien conjointly with a citizen of the State, or if some of the defendants are citizens of the State where suit is brought;6 when there were several defendants, all the persons must be within the description of the persons entitled to a transfer, and all must join in the application.?
So in an ejectment case, where but one was an alien, the application was denied,8 or if one of several plaintiffs is a citizen of another State,' or if the defendants are all citizens of the State where suit is brought, 10
or if the defendant was a citizen of the State at the time suit was commenced, it cannot be removed;11 but the rule does not apply to mere nominal or formal parties.
12 Where the writ is served on one alone, he may remove the cause without regard to others named as defendants. 13 And if only one partner of a firm is served with process, he may file a petition for removal. 14 If one defendant is served personally, and the other is served by publication, the one served personally cannot remove. It is not necessary that the application be made by all the defendants at the same time; each may apply for reinoval on his appearance.l
16 It must appear that the plaintiff is a citizen of the State in which the suit is brought, 17 at the commencement of the suit. 13
1 Ex parte Girard, 3 Wall. Jr. 263; Beardsley v Torrey, 4 Wash. C. C. 285; Smith v. Rines, 2 Sum. 33); Ward v. Arredondo, 1 Paine, 410; W. A. & G. R. Co. v. A. & W. R. Co. 19 Gratt. 592; Denniston v. Potts, 10 Miss, 36; Pugsley v. Freedmau's S. & T. Co. 2 Tenn. Ch. 130; In re Turner, 3 Wall. Jr. 28, 263; Be-ry v. Irick, 22 Gratt. 484; Perkins v. Morgan, 27 La. An. 220; Goodrich v. Hunton, 20 La. An. 372; Hazard v. Durant, 9 R. I. 602; Calderwood v. Hager, 20 Cal. 167; Calderwood v. Braly, 28 Cal 97; Bryan v. Ponder, 23 Ga. 480; Hubbard v. Norther R. Co. 3 Blatchf. 81; Wilson v. Blodgett, 4 McLean, 363; Fisk v: Chicago, R. I. & P. R. Co., 53 Barb. 472; Taylor v. Rockefeller, 25 Pitts. L. J.137; Dunn v. Waggener, 3 Yerg. 59.
2 Dennistoun v N. Y. & N. H. R. Co. 1 Hilt. 62; S. C. 2 Abb. Pr. 278.
3 Commercial etc. Bank of Vicksburg v. Slocomb, 14 Peters, 65; Hagan v. Walker, 14 How. 36; Shields v. Barrow, 17 How. 141; Clearwater v. Meredith, 21 How. 492; Barney v. Baltimore City, 6 Wall. 286; Jones v. Andrews, 10 Wall. 332; Bryant v. Rich, 21 Wall. 41; S. C., 106
Mass. 180; Ober v. Gallagher, 93 U. S. 199; Wilson v. Blodgett, 4 McLean, 363; Imbusch v. Farwell, 1 Blatchf. 571; Tuckerman v. Bigelow, 21 The Reporter, 208.
4 Hubbard v, Northern R. Co. 3 Blatchf. 84.
5 Dennistoun v. N. Y. & N. H. R. Co. 1 Hilt. 62; S. C. 2 Abb. Pr. 278, 415
6 Hatch v. Chicago R. I. Co., 6 Blatchf. 105; Wilson v. Blodgett, 4 McLean, 363; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; Smith v.
Rines, 2 Sum. 338; Calderwood v. Hager, 20 Cal. 167; New Orleans C. & B. Co. v. Recorder. 27 La. An. 291; State v. Com. Pleas, 3 Ohio, 49; Ludlow v. Kidd, 3 Ohio, 48; Miller v. Lynde, 2 Robt. 444; Tibbatts v. Berry, 10 Mon. B. 473; Leonard v. Jones, 2 Edw. 136; Shelby v. Hoffman, 9 Ohio St. 153.
7 Calderwood v. Hager, 20 Cal. 167.
8 Calderwood v. Hager, 20 Cal. 167. See Reed v. Calderwood, 22 Cal. 463.
9 Hubbard v. Northern R. Co. 3 Blatchf. 84; Ex parte Turner, 3 Wall. Jr. 258; Fisk v. Chicago, R. I. & P. R. Co. 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Knapp v. Railroad Co., 20 Wall. 117.
10 Lifford v. Beatty, 12 Ohio St. 189.
11 Ins. Co. v. Pechner, 95 U. S. 183; Richardson v. Packwood, 1 Martin N. S. 290; Risley v Indianapolis B. & W.R. Co., 8 N.Y. Supr. 202.
12 Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421: Wood v. Davis, 18 How. 467; Ward v. Arredondo, 1 Paine, 410.
13 Fallis v. McArthur, 1 Bond, 100; Norton v. Hayes, 4 Denio, 215; Davis v. Cook, 9 Nev. 134.
14 Vandervoort v. Palmer, 4 Duer, 677.
17 Fisk v. Chicago, R. I. & P. R. Co. 53 Barb. 472; Harrison v Shorter, 56 Ga. 512; Smith v. Butler, 39 How. Pr. 192; Savings Bank v. Benton, 2 Met. (Ky.) 240.
18 People v. Superior Court, 34 Ill. 356; Upton v. N. J. S. R. Co., 25 N. J. Eq. 372; Holden v. Putnam F. Ins. Co., 46 N. Y. 1; Pechner v. Phenix Ins. Co., 95 U. S. 183.
$ 95 1. Necessary parties. ---Where redemption of a mortgage is sought, and the land is held in severalty, all holders are necessary parties. So where a bill is filed against a mortgagor and others to obtain an accounting, the cause cannot be removed on application of one of the parties joined with the mortgagor;? and where a foreclosure suit is filed against a mortgagor and a subsequent. mortgagee, the latter cannot remove the cause.3 tion to enforce a joint liability in equity cannot be removed. If a bill to quiet title is filed against several persons as tenants in common, one of them may remove it;5 and if one partner only is served with process, he may remove the cause;ø but a suit against partners to re