« AnteriorContinuar »
22 Chicago & R. I. R. Co. v. Lake Shore & M. S. R. Co., 11 The Reporter, 323.
23 Uphoff v. Chicago, St. L. & N. 0, R. Co., 5 Fed. Rep. 545.
24 Chicago & R. I. R. Co. v. L. S. & M. S. R. Co., 5 Fed. Rep. 19; L. S. & M. S. R. Co. v. C. & R. I. R. Co., 5 Fed. Rep. 19.
25 Johnson v. Philadelphia W. & B. R. Co., 9 Fed. Rep. 6. See generally: Ohio & M. R. Co.v. Wheeler, 1 Black, 236; Balt. & 0, R. Co. v. Harris, 12 Wall. 65; Chicago & N. W. R. Co. v. Whitton, 13 Wall. 270; Williams v. Missouri K. & T. R. Co., 3 Dill, 207; Marshall v. Balt. & 0.R. Co., 16 How. 314; Same v. Gallahue's Adm’rs, 12 Gratt. 658; Chicago & N. W. R. Co.. Chicago & P. R. Co., 6 Biss. 219; Minot v. Phila. W. & B. R. Co., 2 Abb. (U.S.) 323; Goshorn v. Super 1 W. Va. 308.
26 Terry v. Insurance Co., 3 Dill. 493. Bee Fisk v. Chicago etc. R.Co. 53 Barb. 472; King of Spain v. Oliver, 2 Wash. C. C. 429.
27 Bliven v. New England Screw Co., 3 Blatchf. 111; Barney v. Globe Bank, 5 Blatchf. 107; Sayles v. Northwestern Ins. Co., 2 Curt. 212.
28 Second Nat. Bank v. N. Y. Silk Manuf. Co. 11 Fed. Rep. 532.
34 Horne v. Boston & M. R. Co., 18 Fed. Rep. 59; Moore v. Chicago & St. P. Ry. Co., 21 Fed. Rep. 817; Pacific Ry. Co. v. Missouri Pac. Ry. Co., 23 Fed. Rep. 565; S. C., 5 McCr ry, 373.
35 Chicago I. & W. P. R. Co. v. Minnesota & N. W. R. Co., 29 Fed, Rep. 337.
$ 96 f. Citizenship of consolidated corporation. -When a consolidated company is formed by the union of several corporations chartered by different States, it is, for the purpose of suits against it, a citizen of each of the States which granted the charter to any one of its constituent companies; and when sued in one of these States, it cannot claim the right of removal on the ground that it is also a citizen of another State. Although two corporations of different States unite their interest, and the s ockholders become common to both, and their business is conducted by the same directors, the separate identity of each as a corporation of the State by which it was created and as a citizen of that State is not thereby lost.2 A corporation created by the cons lilation of several corporations existing in different States, must be held, on the application for removal of a suit to a Federal court, to be a corporation of each State.3 The union of name, of officers, of business and of property does not change their distinctive character as separate corporations.* The union or consolidation of a corporation of New Hampshire with another corporation of the same name of Massachusetts does not change its character as a citizen of New Hampshire.5 If a corporation is instituted under the laws of two States, a case instituted against it by a citizen of one of the States in a suit brought in the other may be removed. But where a corporation is chartered in several States, when sued in one state it cannot remove the cause to the Federal court on the ground of its citizenship in the other State.? The fact that defendant foreign corporation has, since the commencement of the action, consolidated with a domestic corporation, cannot prevent it from removing an action brought against it as such foreign corporation. 3 A Maryland corporation, by taking a lease of a Virginia road does not thereby become a Virginia corporation so as to preclude its right to remove a cause brought against it by a citizen of that State.
1 Fitzgerald v. Missouri P. R. Co., 45 Fed. Rep. 812.
5 Chicago etc. R. Co. v. Whitton, 89 U.S. 270; cited in Nashua & L.R. Corp. v. Boston & L. R. Corp., 136 U. S. 556.
6 Alleghany Co. v. Cleveland & P. R. Co., 51 Pa. 228;Chicago & N. W. R. Co. v. Whitton, 80 U, S. 270.
7 Horne v. Boston & M. R. Co., 18 Fed. Rep. 59; Memphis & C. R. Co. v. Alabama, 107 U. S. 581.
8 Chicago I. & N. P. R. Co. v. Minnesota & N. W. R. Co., 29 Fed. Rep. 337.
9 Baltimore & O. R. Co. v. Koontz, 104 U. S. 5.
§ 96 g. Right of foreign corporations to remove.-A sister State corporation, sued in a State court by a citizen of the State has a right to a removal to the circuit court. A foreign corporation, even if it is to be regarded as a resident of the State in which it is sued by a citizen of that State, is not prevented from removing the suit to the Federal court on the ground that it is a foreign corporation.2 A foreign corporation sued in the court of the State where plaintiff resides may have the cause removed to the Federal court, under the Act of Congress of March 3, 1887.3 An action against a bank in plaintiff's State and against two residents of other States, with whom it is alleged the bank deposited certain railroad
aid bonds in suit, is a suit between citizens of different States, and removable. An action by a citizen of a State against a foreign corporation doing business therein under a license is removable.5
1 Wilson v. Western U. Tel. Co., 34 Fed. Rep. 561.
3 Loomis v. New York & C. Gas Coal Co., 33 Fed. Rep. 353; Wilson v. Western U. Tel. Co., 34 Fed. Rep. 561.
4 Wilson v. Union Sav. Asso., 30 Fed. Rep. 521. 5 Goodlett v. Louisville etc. R. Co., 122 U. S. 391. $ 96 h. Jurisdiction does not depend on citizen. ship of formal or nominal parties. --The citizenship of formal parties with no real interest in the controversy does not affect the jurisdiction. Formal parties or nominal partiez or parties without interest, united with the real parties to the litigation, cannot oust the Federal courts of jurisdiction if the citizenship or character of the real parties be such as to confer it, within the Judiciary Act, as the joinder of parties who are mere garnishees. By joining a nominal defendant who will not unite with the real defendants in an application to remove, the plaintiff cannot defeat the real defendant's right to remove. + The presence of the record of one who is merely an agent or attorney for the principal defendant will not affect the right of removal as between the principal parties to the controversy.The Federal court does not acquire jurisdiction because of the citizenship of the person suing as next friend of a non compos mentis, such next friend being only a nominal party. In an action by the marshal in a forthcoming bond on attachment, the marshal is merely a formal party, and his residence in the same State as defendant will not defeat the jurisdiction of the Federal courts. A landlord, who has the title, may remove a suit of ejectment from a State court to a Federal court, where the other defendant is merely his tenant, although the State statute requires the occupant of the land to be named as defendant. An heir suing his co-heirs claiming from the first defendant a one-fourth interest in the ancestor's property and from two other defendants partition, their interests are not so identical with the first defendant holding the legal title, as to require them to be joined as complainants.'
When the controversy is between the plaintiff and the removing defendant, who are citizens of different States, the fact that there are other defendants, citizens of plaintiff's State, does not prevent the removal of the case where the interest of one such defendant is identical with plaintiff's interest, and the other co-defendants are merely nominal parties. Improper joinder as defendant in an action for damages for death from the falling of a building, of a tenant in occupation, with the non-resident owner of the house, does not defeat the latter's right of removal to the Federal court. 11 Courts will look behind the nominal parties on the record to ascertain who are the real parties to the suit. 12 After one trial of the issue the substitution for a merely nominal party, of an intervenor, without changing the issue, will not authorize removal of the cause to a Federal court on the ground of citizenship: 13 The citizenship of the county officials will not defeat the right of removal on the part of the non-resident bond. holder, as the former must be deemed to be interested on the same side of the controversy with the complainants.lt A voluntary assignee, a citizen of Illinois, brought suit to set aside a fraudulent preference; the preferred creditor was not a necessary party on removal of the cause by the creditors. 15 On a bill charging that a judgment had been fraudulently obtained against a city in favor of a nonresident, though there was no separable controversy between complainant and such non-resident, and the other defendants being only nominal parties, their joinder could not affect his ri_ht to remove.
1 Removal Cases, 109 U. S. 457; Barney v. Latham, 103 U S 204; Harter v. Kernochan. 103 U. S. 562: Wormley v. Wormley, 21 U. S, 421; Taylor v. Holmes, 14 Fed. Rep. 493; Brown v. Murray, Nelson & Co., 43 Fed. Rep. 614; Hazard v. Robinson, 21 Fed. hep, 133; Gerdger v. Railroad, 87 N. C. 325.
1 Wood v. Davis, 59 U. S. 467. 3 Bacon v. Rives, 106 U. S. 93. 4 Henderson v. Caball, 43 Fed. Rep. 237. 5 Myers v. Nelson, 43 Fed. Rep. 635. 6 Wiggins v. Bethune, 29 Fed. Rep. 51. 7 Wade v. Wortsman, 29 Fed. Rep. 754. 8 Mitchell v. Smale, 140 U. S. 496. See Phelps v. Oaks, 117 U. S. 236. 9 Belding v. Gaines, 37 Fed. Rep. 817. 10 Brown v. Nelson, 45 Fed. Rey. 614. 11 Nelson v. Henncssey, 33 red. Rep. 113.
12 Ferguson v. Ross (N. Y.), 31 Fed. Rep. 161. 13 Hakes v. Burns, 40 Fed. Rep. 33. 14 Harter v. Kernochan, 103 U. S. 562; Anderson v. Bowers, 40 Fed. Rep. 708.
15 Judah v. Iowa Barb. Wire Co., 32 Fed. Rep. 564. 16 May v. St. John, 38 Fed. Rep. 770.
§ 96 i. Nominal parties.- The non-joinder of nom. inal or unnecessary parties will not defeat the right to a removal. They are not to be treated rs parties, although made parties to the suit. So if a citizen of the State where suit is brought is not a necessary party, and his presence is not essential, the non-resident defendant may remove, although the former does not unite in the petition;; and where all the defendants join but one, and that one is an unnecessary party, the cause may be removed. So if plaintiff is a citizen of another State, he may remove the cause if some of the defendants, citizens of another State, are merely nominal parties. The right to a removal is not affected by the fact that a defendant, a citizen of the same State, is a proper but not an indispensable party to a separable controversy. Where the real party to a controversy is clearly entitled to have his rights passed upon by the courts of the United States, he is entitled to remove, although the nominal party has no such right.? So where a landlord, the real owner, assumes the defense, he makes himself a party, and being the real defendant may remove the cause if he be a citizen of a State other than that of the plaintiff.' And when a tenant in possession disclaims title, she may have her landlord substituted as defendant;' but it is otherwise if the tenant does not disclaim, when all must join. 10 Where the real party to a controversy is clearly entitled to have his rights passed upon by the courts of the United States, he is entitled to remove, although the nominal party has no such right;11 and an alien, a real party in interest, may remove a suit brought against him by the State. 12 Though the nominal party be a party on the record, yet it will not defeat the right of the real party in interest to remove and have the cause determined in the Federal court. 13 So in ejectment the sole owner may remove, althoug 1 his grantor, a citizen of the same State, as plaintiff, is a party. 14 If the only relief prayed in a