11

7

10

9

as to one defendant, and left standing as to others. 3 The first clause of this section requires all the plaintiffs or all the defendants to have the right to remove, and applies to the ordinary action at common law, where there is only one party on each side. Where the action was by a citizen of the State against several defendants, and the circuit court had jurisdiction from the amount in controversy, any one of the defendants may apply for a removal if the matter can be fully determined between them; 5 but the controversy must be wholly between them; 6 and the whole suit must be removed; for, if not wholly between them, it cannot be removed, although the controversy of the defendant could be disposed of separately. The suit may be removed, although it does not arise under the Constitution, treaties, or laws of the United States, and irrespective of its quality as equitable or legal; or although there may be other controversies in the suit between other parties; or although the controversy removed is only incidental, as the removal takes the principal controversy, and all other controversies, to the circuit court; 12 or although one of the controversies taken along be between citizens of the same State. 13 The removal of the suit as to one defendant removes it as to all; 14 and all the defendants need not join. 15 This clause applies to suits where there may be distinct controversies between different sets of plaintiffs and defendants, 16 when the parties may be so transposed on opposite sides, according to their interests, as to affect a determination of their rights. 17 Under this clause, each individual plaintiff must be a citizen of a State different from that of each individual defendant.18 The case may be removed where the parties applying have interpleadel, as where intervenors charge fraud and want of jurisdiction. 19 Either one or more may apply for a removal, although other parties are citizens of the same State with those on the opposite side.20 If the real litigation is between citizens of different States, the case is within this section, notwithstanding some of the adversary parties may be citizens of the same State with some of the defendants.21 Where the controversy is severable, a joint tort-feasor may remove;22 and where plaintiff has united controversies which can be fully determined as between the parties, citizens of another State may remove

the cause;23 but if the cause of action is joint, it cannot be removed on the petition of one only. 24 The right of removal in such cases is on condition that the case be wholly determined as to the parties;25 so, if three separate actions are brought, and the same defense is made in each, and a judgment in one will determine the whole controversy, they may be removed if the joint amount incontrovertibly exceeds $500.26 Where five attachments were separately sued out against one stock of goods, the question of ownership is a single controversy. 27 There may be a removal of that part of a cause which concerns the original parties, 23 notwithstanding that a State statute may declare that the trial as to certain other parties cannot be separated from the trial of the main cause. 29 But the circuit court has no authority to decide an action not yet before it, to obtain jurisdiction over one of several tenants in common. 30 There may be two or more controversies in a single suit; and in such a case, where the parties to one controversy are on each side wholly citizens of different States, the suit may be removed from a State to a Federal court.3 The controversy, however, although separable, cannot be alone removed. The whole suit must be removed. This, since the passage of United States Act of March 3, 1875.32 Where a party has a right to remove a suit to the Federal court, by reason of the fact that he is a party to one of the controversies of the suit, the other parties to such controversy being citizens of another State, the removal carries to the Federal court the whole case, although the effect of such removal may be to bring into the Federal court other controversies between citizens of the same State.33

31

1 Sew. Mach. Cos.' Case, 18 Wall. 553; S. C., 110 Mass. 81; Ellis v. Sisson, 11 Fed. Rep. 353; Barney v. Latham, 11 The Reporter, N. S. 721; Carraher v. Brennan, 7 Biss. 497; Hervey v. Illinois etc. R. Co., 7 Biss. 103; Girardey v. Moore, 3 Woods, 37; Removal Cases, 100 U. S. 457; Arapahoe Co. v. Kansas Pac. R. Co., 4 Dill. 277; Burch v. Davenport & St. P. R. Co., 46 Iowa, 449.

2 Chicago v. Gage, 6 Biss. 467; S. C., 8 Ch. L. N. 42; Hervey v. I. M R. W. Co., 7 Biss. 103.

3 Chambers v. Holland, 11 Fed. Rep. 209; Barney v. Latham, 103 U. S. 205; Blake v. McKim, 103 U. S. 336.

4 Maine v. Gilman, 10 Fed. Rep. 214. It relates to a single individual controversy in which all on the moving side are necessary parties, when all must unite, while the second clause contemplates cases in which there are persons whose presence is not necessary: Smith v. McKay, 4 Fed. Rep. 353.

5 McLean v. Chicago & St. P. R. Co., 16 Blatchf. 319; Taylor v. Rockefeller, 6 Fed. Rep. 226; Stapleton v. Reynolds, 9 Ch. L. N. 33; Evans v. Faxon, 10 Fed. Rep. 312; Hervey v. Illinois & Midland R. Co., 7 Biss. 103; Girardey v. Moore, 3 Woods, 397; First Presb. Soc. of G. B. v. Goodrich T. Co., 7 Fed. Rep. 257; Maine v. Gilman, 10 Fed. Rep. 214; Wormser v. Dahlman, 57 How. Pr. 236.

6 Evans v. Faxon, 10 Fed. Rep. 312; Walsh v. Memphis C. & N. W. R. Co., 6 Fed. Rep. 797; McLean v. St. Paul & Chicago R. Co., 16 Blatchf. 309; Ellerman v. New Orleans M. & T. R. Co., 2 Woods, 120; Smith v. St. Louis M. L. Ins. Co., 2 Tenn. Ch. 656; First Presb. Soc. of G. B. v. Goodrich T. Co., 7 Fed. Rep. 257.

7 Carraher v. Brennan, 7 Biss. 497; Board v. Kansas Pac. R. Co., 4 Dill. 277; Burch v. Davenport & St. P. R. Co., 46 Iowa, 449; Barney v Latham, 11 The Reporter, N. S. 93; Chicago v. Gage, 6 Biss. 467.

8 Girardey v. Moore, 3 Woods, 337.

9 Low v. Wayne Co. Sav. Bk., 14 Blatchf. 449.

10 Ketchum v. Black River Lum. Co., 4 Fed. Rep. 139.

11 Hervey v. Illinois M. R. Co., 7 Biss. 103; Bybee v. Hawkett, 5 Fed. Rep. 1; Stevens v. Richardson, 9 Fed. Rep. 191; Evans v. Faxon, 10 Fed. Rep. 312.

12 Farmers' L. & T. Co. v. C. P. & S. R. Co., 12 Ch. L. N. 65.

13 Sheldon v. Keokuk N. W. Line Pack. Co., 1 Fed. Rep. 789. 14 Stapleton v. Reynolds, 9 Ch. L. N. 33.

15 Stapleton v. Reynolds, 9 Ch. L. N. 33; Davis v. Cook, 9 Nev. 134. Where all the parties have the requisite citizenship, on alone may petition: Arapahoe Co. v. Kansas P. R. Co., 4 Dill. 277; Girardey v. Moore, 3 Woods, 397; Caswell v. Schley, 59 Ga. 17.

16 Maine v. Gilman, 10 Fed. Rep. 214; Barney v. Latham, 103 U. S. 205, 17 Burke v. Flood, 1 Fed. Rep. 541; 6 Sawy. 270.

18 Burke v. Flood, 1 Fed. Rep. 541; S. C. 4 Pac. C. L. J. 501; Van Brunt v. Corbin, 14 Blatchf. 496; In re Frazier, 10 Ch. L. N. 390; Ruble v. Hyde, 3 Fed. Rep. 330. If some of the plaintiffs or some of the defendans are citizens of the same State, one alone cannot remove the cause: Hervey v. Illinois M. R. Co., 7 Biss. 103; Ruckman v. Palisades Land Co., 1 Fed. Rep. 367.

19 Burdick v. Peterson, 6 Fed. Rep. 840; Tower v. Ficklin, 60 Ga. 373; Healy v. Provost, 25 Int. Rev. Rec. 240. See Postmaster-General v. Cross, 4 Wash. C. C. 326; Martin v. Taylor, 4 Wash. C. C. 1.

20 Boone v. Iowa & M. Const. Co., 10 Fed. Rep. 401; In re Iowa & M. Const. Co., 10 Fed. Rep. 401.

21 Girardey v. Moore, 3 Woods, 397; Nat. Union Bank v. Dodge, 25 Int. Rev. Rec. 304. See Shepard v. K. N. L. Pack. Co., 12 Ch. L. N. 220.

22 Lockhart v. Horn, 1 Woods, 634; and see Sheldon v. Keokuk N. L. P. Co., 1 Fed. Rep. 789; Taylor v. Rockefeller, 7 Cent. L. J. 31; Clark v. Chicago M. & St. P. R. Co., 11 Fed. Rep. 355.

23 Clark v. Chicago M. & S. P. R. Co., 11 Fed. Rep. 355; Sweet v. Same, 11 Fed. Rep. 355.

24 Stevens v. Richardson, 9 Fed. Rep. 191.

25 Nat. Union Bk. v. Dodge, 25 Int. Rev. Rec. 304.

26 Carraher v. Brennan, 7 Biss. 407; Ellerman v. New Orleans, M. & T. R. Co., 2 Woods, 120; Smith v. St. Louis M. L. Ins. Co., 2 Tenn. Ch. 656; Smith v. McKay, 4 Fed. Rep. 353; Hervey v. Illinois M. R. Co., 7 Biss. 103; Chicago v. Gage, 6 Biss. 467; Osgood v. Chicago D. & V. R. Co., 6 Biss. 330;

Board v. Kansas Pac. R. Co., 4 Dill. 277; Burnham v. D. & M. R. Co., 4 Dill. 503.

27 Anderson v. Gerding, 3 Woods, 487.

28 Temple v. Smith, 4 Fed. Rep. 332.

29 Ellerman v. New Orleans M. & T. R. Co., 2 Woods, 120.

30 Ex parte Turner, 3 Wall. Jr. 258.

31 Snow v. Smith, 4 Hughes, 201.

32 Atlantic & V. F. Co. v. Carter, 4 Hughes, 217.

33 Corbin v. Boies, 13 Fed. Rep. 3; following Barney v. Latham, 103 U. S. 205: Langdon v. Fogg, 13 Fed. Rep. 5; S. C., 21 Blatchf. C. Ct. 392. Compare New Jersey Zinc and Iron Co. v. Trotter, Id. 337.

2

§ 95 p. Right to remove restricted to the defendant.-The defendant on the record is the only party entitled to remove a cause for diverse citizenship, although his counter-claim may be the particular matter in dispute.1 On appeal by a tax payer to a State district court from an allowance of a claim by the county supervisors, the appellee has no right of removal to the Federal court under the Act of March 3, 1887, which gives such right to the defendant only. A non-resident plaintiff, suing in a State court, against whow a counter-claim is brought, is a "defendant" within the Act of 1887, which limits the right of removal to the "defendant being a citizen of another State" than that in which the suit is brought. 3 An action for a tort against two railway companies, lessor and lessee, may be removed by one of the defendants on the ground of non-residence, though the other defendant is a resident. Congress did not, by the Act of March 3, 1875, intend to allow the defendant "to experiment on his case in the State court, and if he met with unexpected difficulties, stop the proceedings, and take his suit to another tribunal." 5 Such a proceeding was not authorized by that act. An action of replevin between citizens of the same State is not removable by reason of the nonresidence of one from whom defendant purchased the property. The residence of a defendant at the time when the action was begun, and not at the time of presenting his petition for removal, must be considered in determining his right to remove the cause. 8

7

1 La Montagne v. T. W. Harvey Lumber Co., 44 Fed. Rep. 645.

2 Tullock v. Webster Co., 40 Fed. Rep. 706.

3 Carson & Rand Lumber Co. v. Holtzclaw, 33 Fed. Rep. 578.

4 Spangler v. Atchison etc. R. Co., 42 Fed. Rep. 305. But see Louisville etc. R. Co. v. Wangelin, 132 U. S. 599.

5 Removal Cases, 100 U. S. 457.

6 Manning v. Amy, 140 U. S. 157; Richards v. Rock Rapids, 31 Fed. Rep. 505.

7 Bronson v. St. Croix Lumber Co., 35 Fed. Rep. 634.'

8 Camprello v. Balbach, 46 Fed. Rep. 81.

§ 95 q. Only non-resident defendants can remove. Where the jurisdiction of the court depends only upon the citizenship of the parties, the right of removal is governed solely by the second clause of the second section of the Act of March 3, 1887, and can be exercised only by non-resident defendants.1 A suit is not removable by a resident defendant.2 So an alien is not entitled to a removal of a cause from a court of the state of wchih he is a resident. So an action brought by an alien against defendant, a corporation of another state, was not transferred. Under the Act of Congress of 1887 all defendants must be non-residents in order to secure the removal of a suit to the Federal court on the ground of citizenship, if only a single controversy is presented. An action for damages for wrongful levy on goods against creditors resident of another State is not removable by the diverse citizenship, as some reside in the same State with plaintiff, and the controversy is not separable. But an action may be removed though neither party is a resident of the district, the restriction as to the place of bringing suit originally being a mere privilege which may be waived. And this is so although the court of that district could not have taken original jurisdiction of the suit. As, where the suit was in the circuit court for the southern district of New York by aliens, against citizens of Missouri. Residence is prima facie evidence of citizenship, but not conclusive; and a person may be a citizen of one State or county, and reside for the time being in another.10 Where a complaint filed in a State court by a non-resident against a resident and non-resident corporation prayed for damages and an accounting from the latter corporation alone for a breach of contract, it is entitled to a removal under the Act of Congress of March 3, 1887.11

1 Western Union Tel. Co. v. Brown, 32 Fed. Rep. 337; Sheffield First Nat. Bank v. Merchants Bank, 37 Fed. Rep. 657.

2 Weller v. Pace Tobacco Co., 32 Fed. Rep. 860; Anderson v. Appleton. 32 Fed. Rep. 855; Mills v. Newell, 41 Fed. Rep. 529; Schofield v. Demorest, 40 Fed. Rep. 273.

DESTY REMOVAL.-20.