Imágenes de páginas
PDF
EPUB

a

suit against a corporation and its officers is by injunction, the officers are merely nominal parties;15 so of a suit to enjoin the execution of a lease. 16 They are not such necessary parties to a suit involving title to lands as to prevent a removal.17 Officers joined as defendants in equity, but as to whom no relief is prayed, are nominal parties, such as will not defeat the right to a removal. 13 Where a non-resident stockholder of a banking corporation does not unite in the application, the corporation cannot be heard to complain; the objection can only be assigned as error by the party himself. 19 State and county officers are not aecessary parties to a controversy relating to the validity of bonds.207 Citizenship of nominal parties, or of aliens who do not constitute the entire party on one side, will not give a right to removal;21 but the fact that defendants are named who have not been served, or have not appeared, who are citizens of the same State as plaintiff, will not defeat the right to a removal. 22 Diversity of ci izenship of nominal parties having no interest does not affect the right of removal, 23 as in the case of a sheriff made co-defendant though he has no interest. 24 As a general rule, trustees and executors are regarded as active, and not merely nominal, parties. 25 Where directors of a corporation are made parties to a suit against the corporation only as agents and officers thereof, and are not .necessary or substantial or real parties, the suit is not removable from a State to a Federal court, because the di. rectors reside in different States.26 In suits for determin. ing ownership of land, the court is to look to the citizenship of the real owners or claimants, and not of trustees. 27 In a suit to foreciose a mortgage in a State court, the mortgagor and mortgagee being citizens of the same State, a non-resident who is made defendant, on the ground that he has or claims an interest in the mortgaged property, cannot by filing a cross-bill alleging that the mortgage is fraudulent and void, so change the character of the suit as to make it removable. 28 When the interest of a nomi: nal party is simulated and collusive, the court should dismiss or remand the suit. 29 Plaintiffs sued a sheriff in a State court for trespass in wrongfully attaching their goods on a writ against A. A's creditors, citizens of another State, procured themselves to be substituted as defendants in the sheriff's stead, and removed the case to the Federal court. Held, that the case should be remanded. 30

1 Wood v. Davis, 18 How. 467; Ward v. Arredondo, 1 Paine, 410: Arapahoe Co. v. Kansas P. R Co, 4 Dill. 277; Edgerton v. Gilpin, 3 Woods, 277; Fisk v. Chicago R. I. & P R. Co., 53 Barb. 472; Mayor eto. v. Cummins, 47 Ga. 321; Calloway v. Ore Knob Co., 74 N. C. 200.

2. Livingston v. Gibbons, 4 Johns. Ch. 94; James v. Thurston, 6 R. I. 428.

3 Hatch v. Chicago R. I. & P. R. Co., 6 Blatchf. 105; Ex parte Girard, 3 Wall. Jr. 263; Hadley v. Dunlap, 10 Ohio St. 1; Livingston v. Gibbons, 4 Johns. Ch. 94. Contra: Wilson v. Blodget, 4 McLean, 363.

4 Cooke v. Seligman, 7 Fed. Rep. 263. 5 Akerley v. Vilas, 2 Biss. 110. See Sands v, Smith, 1 Dill. 290. 6 Barney v. Latham, 103 U. S. 205. 7 Cohens v. Virginia, 6 Wheat. 264. 8 Greene v. Klinger 10 Fed. Rep. 689. 9 State v. Lewis, 12 Fed. Rep. 1. 10 Allin v. Robinson, 1 Dill. 119. 11 Cohens v. Virginia, 6 Wheat. 264. 12 State v. Lewis, 12 Fed. Rep. 1; State v. Texas Pac. R. Co., 3 Woods, 308.

13 Greene v. Klinger, 10 Fed. Rep. 689; Barney v. Latham, 103 U. S. 205. 14 Calloway v. Ore Knob Co., 74 N. C 200. 15 Hatch v. Chicago R. I. & P. R. Co., 6 Blatchf. 105. 16 Pond v. Sibley, 7 Fed. Rep. 129; Nat. Bank of Lyndon v. Wells Riv. Manuf'g Co., 7 Fed. Rep. 750.

17 Nat. Bank of Lyndon v. Wells Riv. Manuf'g Co., 7 Fed. Rep. 750; Pond v. Sibley, 7 Fed. Rep. 129.

18 Fisk v. Chicago R. I. & P. R. Co., 6 Blatchf. 105.
19 Danville B'k & T. Co. v. Parks, 88 Ill. 170.
20 Town of Aroma v. Auditor, 2 Fed. Rep. 33.

21 Hervey v. Ilinois etc R. Co., 7 Biss, 103; Arapahoe Co. v. Kansas & P. R. Co., 4 Dill. 277.

22 Ex parte Girard, 3 Wall. Jr 263.

23 Hazard v. Robinson, 21 Fed. Rep. 193; Hack v. Chicago & Great Southern Ry Co., 23 Fed. Rep. 356; Danvers Savings Bank v. Thompson, 133 Mass 182.

24 Sioux City etc. R. Co. v. Chicago M. etc. Ry. Co., 27 Fed. Rep. 770. 25 Goodnow v. Litchfield, 4 McCrary, 215. 26 Pond v Sibley, 19 Blatchf. C. Ct. 189. 27 Banigan v. Worcester, 30 Fed. Rep. 392. 28 Maish v. Bird, 4 McCrary C. Ct. 127. 29 Little v. Giles, 118 U. S. 596. 30 Ohlquist v. Farwell, 4 McCrary C. Ct. 401.

§ 96 j. Citizenship of all parties on one side must be diverse from that of all on the other side.—Where all the parties on one side of a controversy in a State court are not citizens of different States from all those upon the other side, the citizenship of the parties does not bring the case within the jurisdiction of the United States circuit court so that the case can be removed to that court. 1 So a suit for the foreclosure of a mortgage is not removable if all the parties on one side of the con. troversy were not citizens of different States from those on the other. 2

1 Central R. Co. of N. J. v. Milis, 113 U. S. 249; Blake v. McKim. 103 U.S. 33o; Hyde v. Ruble, 104 U. S. 407; Meyer v. Delaware R. Construction Co., 100 U. S. 457; Leonard v. Jamison, 2 Edw Ch.136; North Riv. S. Co. v. Hoffman, 5 Johns. Ch 300; Kranshaar v. New Haven 8. B. Co.,

7 Robt. 378. See Strawbridge v. Curtiss, 7 U. S. 267; Cameron v M'Roberts, 16 U.S 591; Fairchild v. Durand, 8 Abb. Pr. 305; Prentiss v. Brennan, 2 Blatchf. C.C. 162; Dennistoun v. New York & N. H. R Co. 2 Abb. 378, 415; 8. C., 1 Hilt. 62; Covert v. Waldron, 33 Fed. Rep. 311; Succession of Townsend v. Sykes, 38 La. An. 410.

2 Ayers v. W iswall, 112 U.S. 187. § 98 k. Court will arrange parties on opposite sides.-In determining whether it has jurisdiction, the Federal court will arrange the parties on opposite sides of the controversy, according to their actual relation to each other and the facts, without regard to the showing of the record as regards citizenship of the parties. It is not in the discretion of the pleader to arrange parties in the suit so as to confer jurisdiction. Such arrangement would be a collusive joinder. They must be arranged according to their interests in the suit, and the court, when passing on the question of jurisdiction, will do this. In arranging parties relative to a controversy between them, the mere form of pleadings may be set aside, and the parties placed on different sides of the dispute according to the facts. 4 Under the Act of March 3, 1875, either plaintiffs or defendants may remove the suit to the circuit court. If on arrangement of the parties on opposite sides it appears that those on one side are all citizens of different States from those on the other, the suit may be removed. 6 It requires that all parties on one side of the controversy should be citizens of a State different from those upon the other side.?

1 Sands v. Indianapolis, D. & S. R. Co , 22 Ohio L. J. 199.
2 Bland v. Fleeman, 29 Fed. Rep. 659
3 Bland v. Fleeman, 29 Fed. Rep. 66).

,

4 Covert v. Waldron, 33 Fed. Rep. 311.

5 Meyer v. Delaware R. Construction Co. ("Removal Cases”), 100 V, S 457.

6 Meyer v. Delaware R. Construction Co. ("Removal Cases”), 100 U. S. 457,

7 Central R. Co. of N. J. v. Mills, 113 U. S. 249; Blake v. McKim, 103 U. 8. 386; Hyde v. Ruble, 104 U. S. 407; Meyer v. Delaware R. Construction Co ("Removal Cases"), 100 U. S. 457.

§ 96 1. Removal on ground of separable con. troversy.—The right to remove on the ground of separable controversy is by statute confined to the parties to that controversy." To entitle a party to removal under clause 2 of sec. 2 of the Act of 1875, there must exist in the suit à separate and distinct cause of action on which a separate and distinct suit might properly have been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different States from those on the other.2 Citizenship in a State where suit is brought will not prevent defendant from removing a separable controversy, in which plaintiff is a citizen of another State; so held in a suit for possession of land and for damages to crops, etc.3

1 Rand v. Walker, 117 U, S. 340.

2 Fraser v. Jennison, 106 U. S. 191; Winchester v. Loud, 108 U. S. 130; Hyde v. Ruble, 104 U. S. 407; Succession of Townsend v. Sykes, 38 La. An. 410,

3 Stanbrough v. Cook (Iowa), 28 Fed. Rep. 369. 8 96 m. Separability, how determined. - The question whether there is a separable controversy which will warrant a removal is to be determined by the condition of the record in the State court at the time of filing the petition for removal, unless it is alleged that defendants wrongfully joined for the purpose of preventing a removal.". A cause removable solely upon the ground of a separable controversy as to one defendant, upon discontinuance in the circuit court as to him, must be remanded.2 For the purpose of determining whether a separate controversy exists on petition for removal, the allegations of the bill must be taken as confessed.3

1 Louisville & N. R. Co. v. Wangelin, 132 U. S. 599. 2 Texas Transp. Co. v. Seeligson, 122 U 8. 519. 3 East Tennessee V. & G. R. Co. v. Grayson, 119 U.S. 240.

DESTY REMOVALY.-22.

1

§ 96 n. Either one or more of the defendants may remove a separable controversy.-Where the controversy is wholly between diverse citizens which can be fully determined between them, the right of removal is given to defendants interested in the controversy, irrespective of their residence or citizenship. The last clause of sec. 2 of the Act of 1875 refers only to suits where there exists a separate and distinct cause of action, on which a separate and distinct suit might be maintained. It has no application to cases in which the defendants are sued jointly and as joint contractors. 2 A separable controversy does not exist in behalf of some of the defendants in a cause of action, several as well as joint, where plaintiff has elected to sue them jointly.3 The non-service of process upon one of the defendants, who were sued jointly, where the statute allows the suit to proceed against those served, cannot change the character of the suit so as to make a separable controversy.* When two causes of action are found united in one suit, there can be a removal of the whole suit, on the petition of one or more of the plaintiffs or defendants interested in the controversy which, if it had been sued on alone, would be removable. A separable controversy is one wholly between citizens of different States, which could be wholly determined between them. It must be capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more States on one side and citizens of other States on the other, which can be fully determined without the presence of any

of the other parties to the suit as it has been begun.. On a bill in equity by a citizen of Georgia against two defendants -one a Georgia corporation, and the other a citizen of Virginia–where there is no privity of contract, conduct or estate in the land between the defend. ants, the controversy is separable and a non-resident may remove it.? Where the controversy so far as one pa” -y is concerned has been by judicial determination separated from that of the others, that part of the suit may be transferred to the circuit court. 8 Upon appeal from a street assessment where the several lots were assigned respectively to pay, a separable contro. versy exists in a suit by one owner, although there are other

« AnteriorContinuar »