5 S.Ct. 1034
115 U.S. 41
29 L.Ed. 331
PIRIE and others, Partners, etc.
TVEDT and another, Partners, etc.
May 4, 1885.
G. E. Cole, for plaintiffs in error.
No appearance for defendant in error.
WAITE, C. J.
This is a writ of error brought under section 5 of the act of March 3, 1875, c. 137, (18 St. 470,) for the review of an order of the circuit court remanding a cause which had been removed from a state court. The suit was brought by Tvedt Bros., citizens of Minnesota, against Carson, Pirie, Scott & Co., citizens of Illinois, and Owen J. Wood and Theodore S. Stiles, citizens of Minnesota, to recover damages for a malicious prosecution, it being averred in the complaint that 'the said defendants, confederating together, and with a malicious and unlawful design and intent had and entertained by them, and each of them, to injure, oppress, and harass these plaintiffs, and to break them up in business, wrongfully, maliciously, unlawfully, and without any reason, or provocation, or probable cause, caused a certain action to be commenced against these plaintiffs, in which said Carson, Pirie, Scott & Co. were plaintiffs, for the pretended recovery of money, * * * and then and there wrongfully, unlawfully, and maliciously, and with the aforesaid intent so had and entertained by each and all of said defendants, wickedly and maliciously conspired together, and without probable cause, caused to be issued * * * a writ of attachment upon the stock of goods, wares, and merchandise of these plaintiffs; * * * that, under said writ of attachment, and by direct instruction of the defendants, the sheriff of said county levied the same upon the stock of goods, and closed up the store, and stopped and broke up the business of these plaintiffs.' The defendants Wood & Stiles answered separately from their co-defendants, denying all malice and conspiracy, and saying that they, as attorneys at law, and acting for and under the instructions of Carson, Pirie, Scott & Co., brought the action and sued out the attachment in good faith, and not otherwise. The other defendants also filed a separate answer, admitting that they caused the action to be brought and the attachment to be issued, and that the attachment had been vacated, though the action itself was still pending and undisposed of.
Upon these pleadings Carson, Pirie, Scott & Co. filed a petition under the second clause of section 2 of the act of 1875, for the removal of the cause to the circuit court of the United States, on the ground that as the action was in tort, and therefore in its nature severable, there was in it 'a controversy which is wholly between citizens of different states, to-wit, between the plaintiffs and Pirie, Scott & M'Leish, * * * and that said controversy can be fully determined as between them.'
After the case got into the circuit court on this petition, it was remanded because there was but one controversy in the suit, and that between the plaintiffs, citizens of Minnesota, on one side, and all the defendants, citizens of Minnesota and Illinois, on the other. This ruling is the only error assigned.
It has been decided at this term in Louisville & N. R. Co. v. Ide, 114 U. S. 52, S. C. ante, 735, that, in a suit on a contract brought by a citizen of one state against a citizen of the same state and a citizen of another state, there was no such separate controversy as would entitle the citizen of the other state to remove the cause, even though he answered separately from his co-defendant setting up a separate defense, and the statutes regulating the practice, pleadings, and forms and modes of proceeding in the state where the suit was brought, allowed judgments to be given in actions ex contractu for one or more plaintiffs and for one or more defendants. In that case it was said: 'A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sumn. 348. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to a final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. Here, it is certain joint contracts, entered into by all the defendants for the transportation of property. On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants.' We are unable to distinguish this case in principle from that. There is here, according to the complaint, but a single cause of action, and that is the alleged malicious prosecution of the plaintiffs by all the defendants acting in concert. The cause of action is severeal as well as joint, and the plaintiffs might have sued each defendant separately, or all jointly. It was for the plaintiffs to elect which course to pursue. They did elect to proceed against all jointly, and to this the defendants are not permitted to object. The fact that a judgment in the action may be rendered against a part of the defendants only, does not divide a joint action in tort into separate parts any more than it does a joint action on contract.
The order remanding the cause is affirmed.