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States, to obtain restoration of property conveyed by plaintiffs answer to one of the foreign corporations;10 or an action against a corporation and adverse claimants, to establish a claim to shares of stock;11 or an action by an assignee of an insolvent debtor to compel assignment to him of corporation stock belonging to the debtor;12 or a suit to restrain county officials from collecting a tax to pay bonds;13 or a creditor's bill to subject incumbered property to payment of a judgment and distribution among lien-holders;14 or a suit to set aside a general assignment by separate creditors of the assignor;"> or an action on a bond, one defendant being principal and the others sureties;'6 or a bill for the assignment of dower, against a corporation of the same State as complainant and against citizens of another State its immediate grantors;17 is an inseparable controversy. Or a trustee under a mortgage, which intervenes in an action betweeu citizens of other States to foreclose another mortgage, merely to contest the priority of the liens, has no such separable controversy as will permit a removal to a Federal court.13 Where a lessee, instead of defending, sets up by bill matters which could have been pleaded in ejectment, it does not constitute a separate controversy, though the formal parties are different. 19 The fact that in oriler to obtain a mechanic's lien against the property of the company, the plaintiff is required to show that he fi ed a notice of his sien in the proper county on the proper time, in addition to showing that he is entitled to a judgment against the contractor, does not make the controversies separable. 20
1 Anderson v. Appleton, 32 Fed. Rep. 855. 2 Fraser v. Jennison, 106 U, S. 191. 3 Reed v. Reed, 31 Fed. Rep. 49. 4 Miller v. Sharp, 37 Fed. Rep. 161. 5 Shainwald v. Lewis, 108 U. S. 158. 6 Gearin v. Horner, 36 Fed. Rep. 130. 7 Graves v. Corbin, 132 U. S. 571. 8 Woodrum v. Clay, 33 Fed. Rep. 897. 9 East Tenn. etc. R. Co. v. Grayson, 119 U. S. 240. 10 Vinal v. Continental C. & I. Co., 35 Fed. Rep. 673. 11 Rogers v. Van Nortwick, 45 Fed. Rep. 513. 12 Weller v. J. B. Pace Tobacco Co., 32 Fed. Rep. 860. 13 Aderson v. Bowers, 40 Fed. Rep. 708. 14 Fidelity Ins. T. & S. D. Co. v. fIuntington, 117 U. S. 280.
15 Reineman v. Ball, 33 Fed. Rep. 632.
§ 96 t. Decisions under Act of 1875.—The controversy must be wholly between citizens of different States to give the right to remove." Congress did not intend to confer the right where a citizen of a State other than that in which suit is brought is united with one who is a citizen of the latter State;ż so in a bill to foreclose a mortgage;? or to redeem from a mortgage sale. So the purchaser of an equity of redemption cannot remove if mortgayor and mortgagee are citizens of the same State;5 and so where a judgment creditor intervenes. 6 Where the suit em. braces a single individual controversy, one party cannot remove if the other party consists of residents and nonresidents; so of a bill for a specific performance;8 or a bill to dissolve a corporation;9 or where the owner elects to bring an action for a conversion;10 or if, in the coutest of a will, or in a suit to annul a will, necessary parties joined are residents and non-residents. 11 If a stockholder disputes the rights of both claimants, and one a citizen of another State, the case cannot be removed. 12 A suit to recover land where the real parties are claimants, and damages are demanded of non-residents, cannot be removed. 13
If substantial relief is asked against a party who is a citizen of the same State as plaintiff, the cause cannot be renoved. 14 Where non-residents sued out attachments, and these were followed by other attachments by resident creditors, the non-residents cannot remove the cause. Where less than all the plaintiffs or defendants seek to remove, they must be citizens of different States, and the controversy must be wholly between them;16 for unless the original controversy is between citizens of different States, the case is not removable;17 so a judgment creditor cannot remove a cause where the controversy is between citizens of the same State. 18 If complainant and some of the defendants are citizens of the same State, the cause cannot be removed;19 even where one defendant is a citizen of the State, it cannot be re
moved.20 Where action is brought against several de. fendants, only one of whom is a citizen of the State, the right as to the subject-matter does not attach under the first clause, nor under the second clause, because there is no severable controversy. Where parties on both sides are necessary to the claims of one of the parties, the cause is not removable;22 and even under the judiciary act, if an indispensable party is a citizen of the same State with the plaintiff, jurisdiction would be defeated;23 so a stockholder cannot remove a cause to have stock issues declared void.24 Heirs and devisees of the debtor are necessary parties to a bill to subject real estate of the debtor to the satisfaction of his debts;25 but a widow who has renounced her rights under a will is not a nrcessary party in a suit to annul the will;26 yet the executors are, if they are trustees to the parties seeking to avoid the will.27 A bill in equity to establish a resulting trust in land in possession of a mortgagor is not removable where defendants are inseparable;2; so one or more of several trustees cannot remove;2) and the beneficiary of a trust is a necessary party. 30 Where the bill asserts the obligation of a bond, or an interest covenant against obligor, he is a necessary party.31 A bank is a necessary party in a suit by the widow for the money of her busband held on deposit;32 so the next friend of a femme covert is a necessary party:33 An action to enforce a joint liability cannot be removed ;34 so of an action brought against joint tort-feasors, one being a resident and the other a non-resident. 35 Where an action or suit is brought against several parties, some of whom are and some are not citizens, and the interests of some who are not citizens of the same State as plaintiff are so distinct as to be separable from the main controversy, and determinable in a separate suit or action, such parties may have a removal to the Federal courts of such separable controversy. 36 In the Removal Act of 1875, separate controversy” and “separable cause of action” are not synonymous terms. To entitle a party to a removal, there must exist a distinct cause if action, in respect to which all the necessary parties on one side are citizens of different States from those on the other. 37 If the Federal courts find that there is no controversy wholly between citizens of different States that can be fully de
termined as between them, the cause will be remanded to the State court. 3 After trial, reversal, and remand for a new trial, it is too late to remove on the ground of separable controversy.39 Separate answers to one cause of action do not constitute separate controversies, 40 even if they raise separate issues. +1 A separate defense by one defend. ant in a joint suit against him and others, upon a joint, or a joint and several, cause of action, does not create a separate controversy. 42 Allegation of defendants that each acted separately on his own account, and not jointly, does not divide the suit into separate controversies." When one of several defendants in a suit on a joint cause of action loses his right to remove the action into a circuit court by failing to make the application in time, the right is lost as to all.4 Where a plaintiff has a cause of action against two defendants, one a citizen of the same State, the other a citizen of another State, and where the proof is the same against both, and the same judgment is to be rendered against both, it is not a divisible or separate con. troversy, and therefore cannot be removed into a Federal court upon the application of the non-resident defendant, on the ground alone of citizenship. 45 Where a certain corporation is not only a proper, but a necessary, party to an indivisible controversy, the suit is not removable, its citizenship being identical with that of certain of its co-defendants. 46 No separable and removable controversy is presented by a foreclosure suit, where the rights of all parties are intimately blended with the foreclosure, and all depend on one final decree. +7 Where one claiming title to real estate under a trust deed, files a bill, setting up that her title is superior to that of trustee, or the rights of the holder of the notes secured by the trust deed, the trustee is an indispensable party to the suit, and the holder of the notes cannot, on the ground of his own citizenship, remove the cause from the State to the Federal court, the trustee being a citizen of the same State with the complainant. 48 Where plaintiff's complaint demanded a separate account from each of several trustees of a mining company, whom plaintiff charged with having improperly divided among them protits realized from stock, there was as to each trustee a separable controversy. 43 Creditor's bill to subject encumbered property to payment of his judgment, by sale and distribution of proceeds, among lien-holders, creates no separable controversy. :50 Attaching creditors of L., who had joined as defendants in a suit
to set aside certain judgments obtained against L. by confession, were necessary parties to a controversy between the plaintiff and L., and as they were citizens of the same State with L., the cause could not be removed to the Federal court. 51 A suit charging a corporation and its individual servants with polluting a stream, does not present a separable controversy.52 In A.'s suit against B., for rent, asserting a lessor's lien on all the effects found on the plantation, C. intervened, claiming to own part of the effects, and praying that the contract between A. and B. be decreed to be a mere mortgage, giving A. no ownership, and it was held that there was no separable controversy.53 Where, to a controversy between citizens of the same State, a citizen of another State is made a party only for the purpose of cutting off a junior lien, he cannot have the cause removed.
There is no sep: arable controversy as to him.54 Where both appellees and all the appellants except one were citizens of Texas, and that one was the partner of the two others, held, that an action against the firm for conversion could not be transferred to the United States courts.55 An action against three railroads for breach of contract, entered into by them jointly, is not transferable to a Federal court where one of them was a citizen of the State where the action was brought. 56
When all the heirs are indispensable parties defendant to a suit to subject their ancestors' land to his debt, there is no separable controversy within the removal acts, as between plaintiff and one of the heirs. 57 If plaintiff elects to sue all the defendants for a tort, it will be deemed so far an inseverable controversy that a part only of the defendants cannot remove the cause into the. Federal court. 58 Where the action sounds in replevin, and is against the defendants jointly, there cannot be, as between one of them and the plaintiff, such a separable controversy as entitles that defendant to a removal to the Federal court.59 In determining whether an equity suit is properly removable from a State to a Federal court, on the ground of diversity of citizenship, the interests of the parties thereto are to be