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defendants.9 In a suit to quiet title, where the bill requires each defendant to set up any claim he may have, is a separable controversy. An action in Nebraska to fore. close mortgages in which plaintiffs are citizens of Wiscon. sin, and one of several incumbrancers joined is a citizen of Illinois, the suit is severable and removable by him to the circuit court. 11 An action of tort in a State court being joint and several against two defendants, one of whom is non-resident, is removable by him. 12
A resident corpora. tion of Colorado sued defendants, one of whom was a citizen of Minnesota and one of Wisconsin, in a Colorado court, and defendants removed the case to the United States court for the district of Colorado; held proper. Where the question of the validity of the deed was one which was so entirely separate and distinct from those questions involved in the general proceedings that it could properly be eliminated therefrom without prejudice to such proceedings, it was one which the United States court had jurisdiction to determine.
1 Stanbrough v. Cook (Iowa), 38 Fed. Rep. 369.
2 Louisville & N. R. Co. v. Ide, 114 U. S. 52; Putnam v. Ingraham, Id. 57.
3 Ames v. Chicago, S. F. & C. R. Co., 39 Fed. Rep. 881; Sexton v. Seelye, Id. 705.
4 Patchin v. Hunter, 38 Fed. Rep. 51. 5 Barney v. Latham, 103 U. S. 233; Hyde v. Ruble, 104 U. S. 407. 6 Brown v. Trousdale, 138 U. S. 389; Fraser v. Jennison, 106 U. S. 191; Mitchell v. Smale, 140 U. 406; Ayres v. Wiswall, 112 U. S. 187; Stanbrough v. Cook (Iowa), 38 Fed. Rep. 369.
7 Carter v. Scott, 8 South East. Rep. 421. 6 Yulee v. Vose, 99 U. S. 539.
9 Union Pacific R. Co. v. Myers (“Pacific R. Removal Cases"), 115 U.S. 1.
10 Bacon v. Felt, 38 Fed. Rep. 870.
§ 96 o.
Limitation of right to remove a separable controversy.-Under the Act of Congress of 1887, the right to remove a separable controversy is confined to citizens of different States, United States Revised Statutes, section 639, clause 2, being repealed. Upon the ground
of citizenship there can be no removal from a State court of a case in which one of the defendants, who is an indispensable party, is a citizen of the same State with the plaintitfs, unless the controversy as to him is separable.?
1 Woodrum v. Clay, 33 Fed. Rep. 897; Western U. Teleg. Co. v. Brown, 32 Fed. Rep. 337; Rogers v. Van Nortwick, 45 Fed. Rep. 513.
2 Peper v. Fordyce, 119 U. S. 469; Winchell v. Coney, 51 Conn. 24.
§ 96 p. Controversy must be wholly between citizens of different States.—To give the United States courts jurisdiction on the ground of citizenship, the controversy must be wholly between citizens of different States; and unless the circuit court can take jurisdiction of the whole cause, it cannot be removed.2 Mere temporary residence will not confer citizenship. It will not be presumed that a party was a citizen at the institution of the suit merely because he was such at the time of the transaction out of which it grew. If the order of bail obtained on the oath of plaintiff states that defendant is not a citizen of the State, there is no need of any further proof of that fact.5 The decision of the State court is not conclusive as to the right of removal. The circuit court is not precluded thereby from determining for itself whether the removal was made in time. Whether the cause has been removed may be decided by either court, but in case of conflict the decision of the Federal court will prevail. The jurisdiction of the State court is not dislodged except by full compliance with the requirements of the statute.” The statute contemplates such cases only as are liable to removal. 10
So if a party is not strictly entitled to remove, the State court is bound to maintain its jurisdiction. 11 For although a suit might have been brought in the cir. cuit court, it cannot be removed unless provision is made for its removal by statute. 12 Where there is a Federal question involved in the suit, the circuit court has jurisdiction without regard to the citizenship of the parties. 13 The questions involved need not all be of a Federal char. acter; if a single one exist it is sufficient. 14 A controversy between a maker of certain notes secured by trust deed and a national bank attempting to enforce such deed, is a Federal question. 15 The dissolution of an injunction in. volves no Federal question;16 nor a suit to recover State taxes. 17 So a suit to declare the right of a candidate
elected under a State law involves no Federal question. 18 The question whether the title of the true owner of lands is extinguished by adverse possession is not Federal question. 19
Where it appears at the trial that there is no question involved in the case which it is competent for the court to decide, the case will be dismissed. 20 A controversy as to a non-resident defendant, on the ground of citizenship, must be wholly between citizens of different states. 21
So where one director of a corporation is a citizen of the District of Columbia the cause is not remov.
1 Walsh v. Memphis C. & N. W. R. Co., 6 Fed. Rep. 797.
2 State v. Babcock, 4 Wash. C. C. 245; Beardsley v. Torrey, 1 Wash. C. C. 286; Smith v. Rines, 2 Sum. 338.
3 Prentiss v. Barton, 1 Brock. 389.
6 Hunter v. Royal Canadian Ins. CJ., 3 Hughes, 234; Cobb v. Globe Mut. L. Ins. Co., 3 Hughes, 452.
7 Traders' B’k v. Tallmadge, 9 Fed. Rep. 353. 8 National Union Bk v. Dodge, 11 The Reporter, 641. 9 Burdick v. Hale, 7 Biss. 96. 10 Smith v. Rines, 2 Sum. 338. 11 Gaughran v. N. W. F. Ins. Co., 3 Biss. 431; Kingsbury v. Kingsbury, 3 Biss. 500; State v. C. & A. R. CO., 6 Bis3. 107; Yulee v. Vose, 91 U. S. 539; Robinson v. Potter, 43 N H. 133; Short v. Wilson, 1 Bush, 350; Amory v. Amory, 96 U. S. 183; Cooley v. Lawrence, 5 Duer, 605; Brian v. Ponder, 23 Ga. 43); Redinon l v. Ris321, 12 Joh. 13. 153; Fish v. Fish, 4 Mart in N. S. 676; Darst v. Bates, 51 III. 439.
12 Dennistoun v. N. Y. & N H. R. Co., 2 Abb. Pr. 415.
22 Seddon v. Virginia T. & C. S. & I. Co (Va.) 33 Fed. Rep. 6; Miller v. Sharp, 37 Fed. Rep. 161.
§ 96 q. Must be capable of being fully determined between the parties. — A suit cannot be removed from a State court to a Federal court by one of several defendants unless his interest is so separate and
distinct from that of the other defendants that it can be fully determined, as between him and the plaintiff, without the presence of the other parties. A motion of one defendant to transfer the cause, as to himself, from the State to the circuit court, cannot be granted unless there can be a final determination of the case as far as it concerns him, without the presence of the other defendant as a party. One defendant, a legatee, cannot alone remove the contest of a will on the ground that she is a citizen of another State where the executor and other legatees are necessary parties, where plaintiff claims as sole heir, as the controversy cannot be fully determined. 3
1 Mitchell v. Smale, 140 U. S. 406.
$96 r. Final determination of controversy.The “controversy” is the dispute between the parties, to be ascertained by an inquiry as to what is asserted and denied. To ascertain what is the controversy, inquiry must be made as to what is asserted or denied, or what is claimed and resisted. If the controversy is susceptible of division, the case may be removed, although some of the defendants are citizens of the State where suit is brought.3 Cases where there can be a final determination of the controversy are removable without the presence of one of the other defendants. An alien or non-resident defendant, subject to the conditions specified, may remove the cause as between himself and the plaintiff, leaving the cause as to the other defendants to proceed in the State court;' but no one can remove a cause unless a separate judgment can be rendered against him without the presence of the other defendants. 6 Where the title to real estate is held by one of the defendants for the benefit of all, a final determination can be had, although a part of the defendants do not join, if it is alleged that the title was obtained by the fraud of all the defendants.7 In a suit to quiet title against tenants in common, one defendant as such tenant may remove the case, if he is otherwise within the provisions of the act.8 Where an indorser claims the benefit of usurious interest paid by the maker, the case can be de. termined without the presence of the maker.8 One of sev.
eral defendants, sued as partners, may, if the other requisites exist, have the cause removed so far as concerns himself, if there can be a final determination so far as concerns him.10 If there can be no final determination of the controversy without the presence of the other defendants, the case cannot be removed by the petitioner alone. 11 If citi. zens of the State are joint defendants with citizens of other States, the case cannot be removed. 12 An allegation in the petition that the case is susceptible of division is an allegation of law. 13
1 Ex parte Andrews, 40 Ala. 639. 2 Ex parte Andrews, 4) Ala. 633.
3. Fields v. Lamb, Deady, 430; Bixby v. Couse, 8 Blatchf. 73; Dart v. Walker, 43 How. Pr 29.
4 Allen v. Ryerson, 2 Dill. 501; Bixby v. Couse, 8 Blatchf. 73
5 Sewing Mach. Co's Case, 18 Wall. 553, S. C.110 Mass. 70; McGinnity v. White, 3 Dill. 350; Field v Lownsdale, Deady, 283.
6 Merwin v. Wexel, 49 How Pr. 115. 7 Lewis v. White, 7 Ch. L N. 116. 8 Field v Lownsdale, Deady, 283. 9 Stewart v. Mordecai, 40 Ga 1. 10 McGinnity v. White, 3 Dill. 350; Wormser v. Dahlman, 57 How. Pr. 286.
11 Hodgkins v Hayes, 9 Abb Pr. N. S. 87: Darst v Bates, 51 Ill 439; Burch v Davenport & St P R Co., 46 Iowa. 449; Washington A. & G. R. Co v. Alexandria & W, R Co., 19 Gratt. 592.
12 North Riv. S. Co. v. Hoffman, 5 Johns. 309; Williams v. Price, 5 Munf 507
13 Levy v. O'Neil, 14 Abb. Pr. N. S. 63.
§ 96 s. Inseparable controversy not removable. -An action to establish a will, or to probate a will;2 or to contest a will;" is a single and indivisible controversy; or a suit to set aside a deed obtained by fraud, and to set aside a subsequent deed and lease;t or a suit to close up a partnership where the main dispute is about its existence;) or a bill by one partner to recover from others for an account of the proceeds of the sale of firm property;6 or a suit to reach the entire property of a limited partnership and to declare certain judgments against it void;' or an action on a partnership obligation;' or a bill by a stockholder against his own and another corporation to which it has been leased, to set aside the lease;9 or a suit by a citizen of one State against three corporations, of other