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cover the value of goods sold is not susceptible of division. A foreign landlord appearing as co-defendant in ejectment cannot remove the cause unless the tenant who is a citizen of the State disclaims all interest in the premises.8 If a person files an interpleader, the cause cannot be removed without the presence of both defendants.9 An action of tort against several defendants, for a conspiracy, cannot be removed by part of them under the Acts of 1866 and 1867,10 nor under the Act of 1875.11 If a partner brings an action of account against his copartner and another, the case is not susceptible of a division. 12 An attachment proceeding is of such a nature that the debtor and garnishee cannot be severed, 13 the garnishee not being a defendant within the meaning of the statute.1? Where a debtor and trustee for the sale of land are defendants, the debtor alone cannot remove, as the trustee is a necessary party;!5 so, in an attachment proceeding, the debtor and garnishee cannot be severed. 18 Where a corporation, a trustee, and the bond-holders are defendants, the trustee and one of the bond-holders cannot have the case removed as to them. 17 A controversy concerning the

will cannot be removed on a petition of part of the contestants;13 so one of several opposing claimants cannot remove a cause brought by an executor for settlement of his trust and disposition of the estate;19 so a single creditor or legatee cannot remove the cause where numerous creditors and legatees hold conflicting claims;20 so a citizen of another State, who makes himself a party to a cause where a widow files a petition against an administrator for her support, cannot remove without the presence of the administrator. 21 A trustee in whom the legal title is vested is not a merely nominal party:22 So where a trustee, a non-resident, institutes the suit, the cestui que trust, a citizen of the State, cannot remove. The creditor cannot remove the case if a trustee files a bill to enjoin him and the sheriff for levying execution on the trust property. 24

1 Miller v. Finn, 1 Neb. 254. 2 Upton v. New Jersey S. R. Co., 23 N. J. Eq. 372. 3 Donahoe v. Mariposa L. & M. Co., 5 Sawy. 63. 4 Yulee v. Vose, 91 U. S.539; S. C., 61 N. Y. 449. 5 Field v. Lownsdale, Deady, 289.

bate of


6 Wormser v. Dahlman, 57 How. Pr. 286.

7 Merwin v. Wexell, 49 How. Pr. 115. Contra, McGinnity v. White, 3 Dill. 350.

8 Allin v. Robinson, 1 Dill. 119. So if the tenant is made defendant in ejectment, the landlord, citizen of another State, can ot remove the cause: Ex parte Turner, 3 Wall Jr. 258; Ex parte Girard, 3 Wall. Jr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; but see Jackson v. Stiles, 4 Johns. 493.

9 George v. Pilcher, 28 Gratt, 299.
10 Ex parte Andrews, 40 Ala. 639; Smith v. Rimes, 2 Sum. 338.
11 Van Brunt v. Corbin, 40 Blatchf. 495.
12 Levy v. O'Neill, 14 Abb. Pr. N. S. C3.
13 Weeks v. Billings, 55 N. H. 371.
14 Weeks v. Billings, 55 N. H. 371.
15 Gardner v. Brown, 21 Wall. 35.
16 Weeks v. Billings, 55 N. H. 371.

17 Cape Girardeau R. Co. v. Winstor, 4 Cent. L. J. 127. See Gardner v. Brown, 21 Wall. 36.

18 In re Fraser, 10 Ch. L. N. 390.
19 Ex parte Grimball, 8 Cent L. J. 151.
20 Peters v. Peters, 41 Ga. 242; Burts v. Loyd, 45 Ga. 104.
21 Peters v. Peters, 41 Ga. 212.
22 Dunn v. Waggoner, 3 Yerg. 59.

23 Mead v. Walker, 15 Wis. 493; Geyer v. Hancock Ins. Co., 50 N. H. 224. 24 Nye v. Nightingale, 6 R. I. 439.

$ 95 m. Decisions under the Acts of 1866, 1867.-A non-resident plaintiff is entitled to a removal as to all the defendants. He may remove as against a citizen of the State in which suit is brought and a citizen of a third State who had voluntarily appeared. A removal is not authorized when the application is made by a citizen of the State where suit is brought, nor where both parties are citizens of the same State. If the substantial parties are two corporations, and both citizens of the State, the cause cannot be removed. 5

So, if both parties become citizens of the same State prior to the filing of the petition, the cause cannot be removed. A defendant cannot remove the cause where he became a citizen of another State after the bringing of the suit. ? All the plaintiffs must be citizens of the State where suit is brought, and non-resident plaintiffs cannot remove wholly nor as to themselves. If citizens of different States unite as plaintiffs, defendant, although a citizen of another State, cannot remove the cause; 9 nor in such case can plaintiffs re








able. 17


Nor can the suit be removed if a citizen of the State joins with a citizen of another State; so if there are several plaintiffs, and one of them is not a citizen of the State, it cannot be removed; 12 and a suit in which a citizen of the State is plaintiff and a domestic corporation and two citizens of another State are joint defendants is not removable. 13 The Act of 1867 does not apply where the cause of removal is alienage; so an alien defendant is not within this clause, 15 and if plaintiff is an alien, defendant cannot remove;16 or if both parties are citizens of States other than where suit is brought. 17 So a citizen of the District of Columbia cannot remove a suit into the Federal court. Under the Judiciary Act, section 12, to authorize a removal, the citizenship of each of the defendants must be such as to make his suit remov

Under the Acts of 1866, 1867, it is sufficient that the defendant applying for is at the time of filing his petition a citizen of another State, and the plaintiff a citizen of the State where suit is brought. 20 But if defendant had been a resident of the State at the time of the passage of those acts, the case is different. 21 In an action ex contractu, where there were three defendants, two non-residents and a third a citizen of the State where suit was brought, it could not be removed by the two non-residents. 22 Each defendant must be a resident of a different State from the plaintiff's State;23 so where the removal of the whole suit was sought, and not the suit as to the non-residents under the Act of 1866.24 So the grantor of a deed cannot, under the Act of 1866, remove a suit to foreclose a deed, leaving the trustee, his co-defendant, in the State court;25 and so of a garnishee or trustee joined as defendants. 26 Under the Act of 1867 one of several defendants, a non-resident, cannot remove unless the others are improper, formal, or unnecessary parties.27 A mere voluntary intervenor cannot remove the cause;23 and so of stockholders of a corporation;29 but one not sued bus brought into the suit as warrantor, on motion of the defendant, has the right to remove, as in the case of a landlord, where the tenant is defendant. 30

1 Sands v. Smith, 1 Dill. 190.

2 Sands v. Smith, 1 Dill. 19); doubted, Sewing Mach. Cos." Cas. 18 Wall. 553.

3 Hurst v. Railroad Co., 23 U. S. 71.

4 Knapp v. Troy & B. R. Co., 20 Wall. 124.
! W. A & G. R, Co. v. A. & W. R. Co., 19 Gratt. 592.
6 Laird v. Conn. & P. Riv. R. Co., 55 N. H. 375.

7 Dart v. Walker, 4 Daly, 188; S. C., 43 How. Pr. 29; Indiana B. & W. R. Co. v. Risley, 50 Ind. 60; Tapley v. Martin, 116 Mass. 275; Dustin v: Dickinson, 2 Mich. N. P. 6. 'Contra: Johnson v. Monell, 1 Woolw. 399; Cook v. Whitney. 3 Woods, 715.

8 Bliss v. Rawson, 43 Ga. 181. 9 Bryant v. Scott, 67 N. C. 391. 10 Bliss v. Rawson, 43 Ga. 181; Bee:y v. Irick, 22 Gratt. 433; Martin v. Coons, 24 La. An. 169.

11 Goodrich v. Hunton, 29 La. An. 372: Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372; Case v. Donglass, 1 Dill. 299; Fisk v. Chicago R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602.

12 Case v. Douglass, 1 Dill. 299: Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Merwin v. Wexel, 49 How. Pr. 115.

13 Howland etc. Works v. Brown, 13 Bush, 681. 14 Crane v. Iieeder, 28 Mich. 527.

15 Sewing Mach. Cos.' Cas.. 18 Wall. 553; S. C., 110 Mass. 70; Crane v. Reeder, 28 Mich. 527; Davis v. Cook, 9 Nev. 134.

16 Knickerbocker L. Ins. Co. v. Gerbach, 70 Pa. St. 15).

17 Insurance Co. v. Francis, 11 Wall. 210; Hurst v. Railroad Co., 93 U. S. 71; Amer. Bible Soci. v. Grove, 101 U. S. 610.

18 Cissel v. McDonald, 16 Blatchf. 150; Hepburn v. Ellzey, 2 Crarch, 445; Westcott v. Fairfield, Peters C. C. 45; New Orleans v. Winter, 1 Wheat. 91; Vape v. Mifflin, 4 Wash. C. C. 519; Picquet Swan, 5 Maso 35; Barney v. Baltimore, 6 'Wall. 280.

19 Shelby v. Hoffman, 7 Ohio St. 453; citing Hubbard v. Northern R. Co., 25 Vt. 715; Board of Foreign Missions . McMaster, 4 Am, Law Reg. 529; Welch v. Tennent, 4 Cal. 203.

20 McGinnity v. White, 3 Dill. 350. 21 Dart v. Walker, 4 Daly, 188. 22 Sewing Mach. Cos.' Cas., 18 Wall. 553, S C., 110 Mass. 70. 23 Fairchild v. Durant, & Abb. Pr. 305. See Bixby v. Cousc, 8 Blatchf. 73. 24 Vanncvar v. Dryant, 21 Wall. 41. 25 Gardner v. Crown, 21 Wall. 35; Coal Co. v. Blatchf. 11 Wali. 172 26 Weeks v. Billings, 55 N. H. 371. 27 Cooke v. State Nat. Bk., 52 N. Y. 96. 28 Williams v. Williams, 24 La. An. 55. 29 W. A. & G. R. Co. v. A. & W. R. Co., 19 Gratt. 592.

30 Greene v. Klinger, 10 Fed. Rep. 689; and sce In Te Iowa & M. Const. Co., 10 Fed. Rep. 491; Healey v. Provost, 6 Week. No. 579.

f 95 n. Where alien is party.--Suits against an alien under the Judiciary Act include only suits between an alien and a citizen of the State;' there can be no removal if plaintiff is an alien;? or if both parties are aliens;3

But an

and under Revised Statutes, section 639, if a citizen of another State is one of the defendants with an alien, the case cannot be removed. If an alien has merely filed his declaration of intention to become a citizen, he is still an alien. Resident unnaturalized foreigners may remove causes to the Federal court, although by State laws they may vote at election, or hold office under the State government. A foreign corporation is an alien, and may remove the suit.? A suit brought by a citizen of another State against a citizen of England is removable. To give the right to a removal all on one side must be citizens, and all on the other side aliens. 9 An alien defendant may remove an action brought against him by the State. 10 The jurisdiction of the circuit courts, of suits by citizens against aliens, is not defeated by the fact that the defendant is the consul of a foreign government." action by an alien residing abroad, in the court of one State against citizens of another, cannot be removed into the Federal court on the petition of defendant. 12 An alien sued with a citizen, by another citizen of the same State, cannot have the suit removed to a United States court as to himself, although the controversy is separable. 13

Mossman v. Higginson, 4 Dall. 12; Hodgson v. Bowerbank, 5 Cranch, 363; Resp. v. Cobbett, 3 Dall. 467.

2 Galvin v. Boutwell, 9 Blatchf. 470; Sawyer v. S. M. Ins. Co., 11. Blatchf. 451; Barrowcliffe v. La Caisse Generale, 58 How. Pr. 131.

3 Orosco v. Gagliardo, 22 Cal. 84.
4 Dennison v. Potts, 19 Miss. 36.
5 Lanz v. Randall, 4 Dill. 425; Orosco v. Gagliardo, 22 Cal. 83.

6 Lanz v. Randall, 4 Dill. 425; D'Wolf v. Rabad, 1 Peters, 476; S.C., Paine, 580; Case v. Clarke, 5 Mason, 70; Cooper v. Galbraith, 3 Wash. C. C. 546; Shelton v. Tiffin, 6 How. 163.

7 Terry v. Imperial F. Ins. Co., 3 Dill. 408. 8 Eureka Consol. M. Co. v. The Richmond Consol. M. Co. 2 Fed. Rep. 329 Contra, under section 639, Denniston v. Potts, 19 Miss. 36.

9 Dannmeyer v. Coleman, 11 Fed. Rep. 97. 10 State v. Lewis, 12 Fed. Pep. 1. Contra: Galo v. Eabcock, 4 Wash. C.C. 334; Resp. v. Corbet, 3 Dall. 467.

11 Bors v. Preston, 111 U. S. 252.
12 Harold v. Iron Silver Min. Co., 33 Ied. Rep. 529.
13 King v. Cornell, 106 U.S. 595.

§ 95 0. The whole controversy removed.--Under this section the whole suit must be removed, and not like the Act of 1866, a part of it. It cannot be removed


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