ARGUED AND DETERMINED
.S'I'A'I'E OF TEXAS
Lltwls and others.
(Clircult Court, No D. Te:»aI.
lbmovAL OJ' CAUSE-NoMINAL PARTIES.
, A. tenant in possession sued in treapllSli' to try the title to land, and who disclaims title, may have her landloJ;<1', the real in interest, substituted' aa defendant. In such case she is but a nominal party on the record, whose presence could not defeat the righfof the real parties in interest to have the cause determined in the federal court. . . ' Green.e v. Klinger, 10 FED. REP. 689, followed.,
Snm-ACTIONS BROUGHT BY STATE-ALIEN' DEFENDANTS-RiGHT TO NOVE.
Where, by act of congress, the power of the United States judiciary was extended to controversies between,a state and the citizens thereof and subjects of a.foreign state, the act is broad enough,to cover a suit brought by the against the subjects of friendly foreign powers, and such alien defendants, beine; the real parties in interest, have the right to have their cause removed for trial to the circuit court, and a motion to remand should be refused.
'Motion by the Plaintiff to Remand to the State Court. Clark et Dyer, C. A. Jennings, the Attorney General of Texas, and the County Attorney of McLennan county, for plaintiff. C. S. West and Gen. Thos. Hamson, for defendants. MCCORMICK, D. J. The record shows that in accordance with a joint resolution of the sixteenth legislature, passed the nineteenth of February, 1879, directing a suit to be brought for the, purpose of v.12,no.l-1
settling the title of the state, and of those who held title under the state, as purchasers of certain of the university lands, this suit was brought, in the name of the state, in the district court of McLennan county, against Jenny Lewis, a citizen of Texas. She answered, disclaiming all title or interest,in her own right, in the subject-matter in controversy, only on the land in her capacity as tenant of her landlords, Gregorio Jose Martinez Del Rio and Pabla Jose Ma:t?friIJ.ei'l and,praysthaAi,they may be per. the Del Rios, mitted to appear as defendants.. At the alleging themselves to be resident$,p£ the republic of Mexico and subjects of Great Britain, appear, and, making .themselves parties defendant and answering said suit, proceed in due time, by proper .thi'S donrt, arid. fiw·ih dUetinie hi .tItiS Of had the cou'tli:"'" . i The grounds relied on in argument in support of the motion to remand may be resolved into two:
(1) Because the defendant Jenny Lewis is a citizen of Texas, and a necessary party to the snit. (2) Because this court has no jurisdiction of a case wherein a sovereign state of thiil Union is the pla,intiff, even thongh the defendants are aliens, and' the case iS1a.tterupted to be brought here by removal from the state court.
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landlord may enter himself as the defendant, -or he may be m/lde a party on the motion of such tenant, and he to make the same defence as the suit had been oliginally commeneed against him."
The defendant her landlords becoming defend· ants, fully disclaimed'1Lll interesta:m.d, any title in the land in suit, a.nd asks the jud'gment of thecotrtt. 'Whether, for certain purposes of the action;thEl,plaint,iff the right to have this disclaim1ng defendant,. who was the actual .occupier of the premises; retained as a defendant, it seems clear to my mind that within the meaning. of the acts of eongresson the. subject of removal of causes from' the lrlate conrts,'J'enny Lewis was' mere ridminal party, whose preserrce as a defendant on thtl 'l'e'cordcoUld ilot defeat'the right of the real defendants to·the conttovlirsyto the same heard and deterlriinedbJ this court. 'THis, Itlliilk, iii clearly embraced in the actions ahd opiriions 'of'Judges'Dlival, 'WlJod, 'ttnd Pardee, in the cases 1,8U} 1,812, a.nd, 1,813. Greeni'f. in the Circuit 'court forwesterli district of Texas, at Austin, 10 FED. , REP. 689.
The other grouDcf'ln:eseilts involves questions fwhich, while they may ha'Y& been, the subject niora or less of discussion, have' not been dir,ectly itivolve'd' in any decision iupreme court, and as here presented have not, as.I been ruled upon by any of the circuit oourt decisioris ,to which! have ha'i'l access. I have not been able to examine the case of Gale v. Babcock, ,C. C. 344, not being furnishe'd or able to obtain the report of the case, but froni references to it in other opinions it suit against an cases cited by plaintiff's oounsel Dallas, 12; 2 Pet. 136; '5 Cranchi, 803; '2'B1atchf. 162; 3 Blatclif. '244, do not reach the question involved here. ' In Prentiss, v. 2 Blatchf. 164, :Judge Nelson6ai'efwly limits his language to "individual parties," a limitation which it is plain to my mind lllust be implied in eacn'bf the other ,cases 'cited. State v. Brailsford, 2 Dallas, 402, shows that Judge Iredell, on the circuit, refused to let the state intervene, holding, as shown ill' his opinion, that "whenever a state is a party the supreme court has exclusive jurisdiction of the suit." Mr. Justice Wilson expresses a -different view, and the other judges announce no opinion on that 'question. " In State v. of University, 5 N. B. R. 466, Judge BrooKs refused to entertain a suit by the state against its own citizens, taking exception on his own motion to the jurisdiction, without the suggestion of counselor benefit of argument thereon, 'and his view, strongly expressed, is that where the jurisdiction depends upon the 'character of the parties and not the character of the subject' in controversy, any attempt upon the part of congress to vest jllrisdiction of causes in which a state is a party in the circuit court would be In' Wisconsin v. Duluth, 2 Dill. 406, Mr. Justice Miller dismissed the plaintiff's bill,' (Dillon,' C. J., concurring,) holding that a stat-e cannot bring an action or suit in the circ1,litcourt bf the United States against a citizen or citizens of opinion in that case shows that it was carefully and; though he suggests the limited opportunity which" the exigency of the Mse gave for investigation, the cast of the opinion that he then had present before his mind the rulings ings of ali the reported cases bearing upon the question. He alludes to the view that had been advanced, that the' c,dnstitu!tlon, given 'the supreme court original jurisdictidd"thali court couldn6t exercise, 'also, appellate' jurisdiction, and U;aat, ,therefore, it the' cif: elUit 'court Iconld' 'iu'srtch da:ses, hd'Itpph'al'orwr'it
of error could be had when such suits were brought in the circuit court; and he says tha't the natural import of the language used, in the constitution favors very strongly this idea. He, however, waives this view of the question, and proceeds to show that the, constitntion extends the itIdiciary power of the federal government to such cases (a state against citizens ofanothel: st.ate) and gives the supreme court original jurisdictiou, and does not, proprio vigore, confer jurisdiction of such cases on any other court; that all other courts of the United States,being creatures of the statute, can exercise no jurisdiction but such as is given by the statute; that if congress can confer on the in this class of cases, it is a sufficircuit courts original cient answer to say that it, has ;not done it. And, in conclusion, he "that it is with the less reluctance we dismiss the bill, as we must for want of jurisdiction in this court, because we have no doubt that both the state courts of Minnesota an9. the supreme court of the United States are open to the state of Wisconsin for such relief as she may be entitled to." Does it follow from the proposition that neither the constit,ution nor any act of congress authorizes a state to sue in the circuit court, that where a suit is properly brought, in a state court having unquestioned jurisdiction, by a state against an alien, the alien cannot, under section 639, Rev. St., remove the cause to the circuit court? The language of this section is V61JY broad: "Any suit commenced in any state court ill · ill' may be removed · · · in,the cases and in themanner stated inttlis section: First, when the sq.it is against an alien." . This is certainly a suit brought in a state cour-t. There canbe no question jurisdiction of the state court to enforce the rightful clai1lls of the state against persons or real property within her bounds. ,This case now stands as though it ,had originally been brought, against the alien defendants,;btIt at the insti. tution of the s:uit the only defendant then disclosed, and, for all that appears, the only adverse claimant then known to the plaintiff,was a citIzen of Texas, of which parties only the state courts could entertain jurisdiction. It subsequently appeared (as Chief Justice Marshall announced might often occur) that the real parties to the controversy ,were such as brought the case within the judiciary power of the United States. A party clearly entitled to have his rights passed tIPon by the courts of the United States, finds himself sued in a state a controversy involving values of large amount. A statut61·of the United States, expressed in terms a.pparentlybroad enough to comprehend' "his case, directs the steps by which he can
STATE OF TEXAS V. LEWIS.
remove the case to the circuit court. Those steps are taken; the case is docketed here in apparent accordance with that statute. Is this court without jurisdiction because jurisdiction has not been given by the act of congress? The language of the act is surely broad enough to include this case, unless the true construction and import of section 2, art. 3, of the -constitution withholds from the legislature the power to vest jurisdiction in the circuit courts, (dependent upon the character of the parties,) in cases "in which a state shall be a patty." In my judgment this is not held by the case of Wisconsin v. Duluth or Prentiss v. Brennan; and the reasoning of Chief Justiee Marshall in GQhens v. Virginia, 6 Wheat. 264, and in Osborn v. Bank of u. S. 9:Wheat. 738, is certainly not inconsistent with the view that congress' could vest such jurisdiction in the circuit courts. The language used by him in his opinions in those cases, ./tnd the language used by Mr. Justice McLean and Chief Justice Taney in the opinions they delivered in the case of Pennsylvania v. Wheeling B1idge Co. 13 How. 520, indicates that those eminent judges, and perhaps the whole court as then constituted, were of opinion that the giving the supreme court original jurisdiction, in cases "in which a state shall be party," did not so vest in that court exclusive, jurisdiction in such cases as to withhold from congress the power to vest in the circuit court a concurrent jurisdiction in such cases. It is conceded, being well settled by those cases and many subsequent ones, that cases where the ,subject-matter of the controversy would give the federal judiciary jurisdiction, may originate in· other courts and be removed to the circuit court or taken by appeal or writ of error to the suprellle court, although a state shall be party. And this was the phase of the question judicially pressing upon the mind of the judges in those early cases. They appear to consider the provision giving the supreme court original jurisdiction in cases in which a state shall be party, to have been adopted out of regard for the dignity of the party. At the time of the adoption of this provision of the constitution it had not been deemed necessary or expedient to exempt the states from being sued by citizens of another state,or by citizens or subjects of foreign states. Now, out of regard to the dignity of a state, she is exempt from being sued in the United States courts, and on account of her dignity she is permitted to bring an original suit in the supreme court of the United States, when she has a case to which the judiciary power of the United States extends. But when, disregarding or waiving this privilege, she voluntarily comes into
. anothet.:court, must she not come Reany other suitor,'subject to all the conditions and provisions which would apply were one of her citizens the plaintiff instead of herself? ' Here, as this suit now stands, the state of Texas has brought a suit in a state court, wherein the amount in dispute, exclnsive of costs, greatly exeeeds the sum of value of $500, against alien defendants. It does not appear that the subject-matter of the suit falls within the judiciary power of the United States, hence there can be 10 removal by writ of error after trial to the supreme court. There is no statute providing for removal before trial of any suit from a state conrt to the supreme court of the United States. If congress can provide for the removal of such cases to the circuit court, the provision is ample. If congress cannot so provide, here is a case between a state and a subject of a foreign state, (to which the judiciary power,' by express terms, extends,) wherein the subject of a foreign state cannot invoke the protecting regis of the judiciary power of the United States. And if that power was extended to controversies between a state and the citizens thereof, and subjects of a foreign state, to give to the mbjects of friendly foreign powers an assurance they might not be able otherwise to entertain, of receiving impartial justice in the judicial determination of any controversy which might be urged against them by one of our states or the citizens thereof, surely thIS case brings these defendants within the mischief intended to be guarded against. Here the state on her own behalf, and that, too, as actual trust,ee of a sacred fuud, dedicated to a purpose which' enlists the most noble pride and warmest affection of our whole people, and also on behalf of individual citizens, numerous, perhaps, and influential residents of McLennan county, where the suit is brought, who have purchased lands from the state involved in the same qp.estions sought to be settled by this suit, brings this suit in her ow,n courts against these alien defendants. In the absence of constitutional or statutory provisions reaching the case, ite features, as I have grouped them, would address a constituent or legislative assembly rather 'than a court of justice. But courts of justice, in the disc harge of their duty to declare the true import and construction of constitutional and statutory provisions, do derive abundant aid from the consideration of aU the material features of the case actually made before them; and it is tbis which gives to judicial decisions a weight of authority not s.cCQJ:ded to any merely speculative reasoning of the most llrninent judges. From a careful consideration of the terms of the constitution,. and of the acts of congress bearing on the questions, andafuH
examination of all the authorities to which counsel have referred, I am constrained to hold thai the defe'ndants ,have (the right to have tq should this cause tried by this court, and that the be refused. And it is so ordered. ..' .
The non-joinder of nominal or unnecessary'parties mUnot defeat therighttoa remov:U.(a) They are nond'be treated as parties, although made parties to the stii't.\b) So, if a citizen of the suit is brought is not a necessary party, and his presence is not, essential, the non-resident defendant may remove although the foriner doesl1dt unite in all j91n. that one is an tlie petition;(c)' Ul;mecessary J?arty,.thecause maybe isa of of another state he may remove the cause if some of the defelldants, another state, are merely nominal parties.(e) The right to' a removal is not affected by the fact that R defendant, a citir.eIJ. of .the sRIJ,le -state, is a proper but not an indispensable palty to a separable controversy.\ (f) Where. the t rea! to a is clearly entitled' to his rights passed upon by the courts 'of the' United States, he is entitled to remove although the nominal party bas no such right.(g) So, where' a ;landlord, the realo#ner, asslimes the defence, he makes himself·,aparty, and being the real defi:mdant may Fpe cause if he,be a of ;\state other than that QftJie plaintiff.(h) So, in ejectment, owner. may remove, although ·4is grantor, a citizen of the same state as plaintiff, is a par(y.(i) If the only ret lief prayed in a suit against a corporation and officerS i's 'by injunctron, the officers are merely nominal patties ;(J)' so of a suit to enjoin the execution ofa lease.(k) They are lnotsllch necessary parties to a suit involving title to lands as to prevent aremoval.(Z) Officers joined as defendants in equity, but as to whom no relief is prayed, are nominal parties, sllc,b as will nop defeat the right to a l'emovaHrn) ,Wbqre a non-resident stockholder of a banking corporation does the' application, the cannot be heard to complain ; the dojection can only be assigned as error by the party himself.(n) State and county officers are not necessary parties tOll. controversy relating to the validity.of bonds.(o)-[ED.
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(a) Wood v. DavIs, 18 How. 467 ; Ward v. AI'redonooi 1 PaIne, v;:·.Kansas;P. R. Co. 4 Dill. 277; Edgerton v. Gilpin, 3 Woo\is, 271; v. Chicago, R: 1. & P. R. Co. Barb. 472; lIfayor, etc., v. Cummins,:17 Ga. 321; Callo. Ore Knob Co. 74 N. C. 200: (b) Livingston v. Gibson. 4 ·Johns. Ch. 94; James v. Thurston, 6 R. I. 428. (c) Hatch v, Chic_go, R. I. '" P. R. Co. 6 Blatchf.1oo; Ex. parte Girard, 3 Wall. Jr. 263; Hadley v. Dunlap. 10 Ohio St. 1; LivIngston v. GIbbons, 4 Johns. Ch. 94, contra; Wl1son v. Elodget, 4 McLean, 363. (d) Cooke v. seligman, 7 Fed. Rep. 263. (e) Akerly v.' Vilas, 2 Biss. 110. See Sand,S v. Smith, 1 Dill. 290.
(f) Barney v. Latham, 2 Morr. (,.) Cohensv. \lirginia .. 6 Wheat. 2M. (Ii) Greene v. ,R;liul!;er, 10 Fed. Rep .. 689·· (i) Calloway v; Ore KnohCo. 74 N.C. 200. (j) Hawhv. Chicago, R. I. & P. R. Co. 6. B1atchf. 105. (k) Pond v. SIbley, 7 Rep. 129; Nat;Bllnk of Lyndon v. Wells Rlv. Malluf'g Co. 7 Fed. Rep. 750. . (I). Nat. Bank ofI,yndon v. Wells Riv.Manuf'g Co. 7 Fed. Rep. 760:; Pond v. Sibler. Id. 129. (m) Fisk v. Oblcago,R. I. &P'R.Co.6 Blatcht.
. (n) Danv\lle Bk. & T. Co. v. Parks, 88 11); 170. (0) Town llfAroma v.Auditor, 2 Fed. RI'P. 33,
TOWN OF ANGELIOA.
(Circuit Oourt, N. D. Ne'I1J York. April, 1882 )
1. RElloVAL 01' CAUSES-AsSIGNEES AS PARTIES.
A plaintiff who has been introduced into a controversy by assignment or transfer merely that he may acquire a standing and telation to the controversy , to enable him to prosecute it for the beneficial interests of the original party, improperly and collusively made a party to the suit.
Where the plaintiff has no substantial interest in the coupons sued on,but obtained the legal title to enable him to maintain the action, and where ,'he bought them without any inquiry as to their validity or value, and pretended to pay for them by a check whiCh he never paid, it is the duty of the court to dismiss the suit. '
Spencer Olintan, fot plaintiff; 'Hamilton Ward, for defendant. WALLACE, C. J. By the fifth section of the of March 3, 1875, to detemnine the jurisdiction of circuit courts of the United States, it is declared that if at any time in the progress of a!case, either originally commenced in a circuit court or removed there from state conrt, it shall appear that such suit does not really involve a dispute or controversy properly within the jurisdiction of the court, or the parties to said suit have been improperly or collusively made or joined, either as; plaintiffs or defendants, for the purpose of creating. a case cognizable or removable under the act, the said circuit conrt shall proceed no further, but shall dismiss the suit or remand it to the court from which it was removed. Thisl,tction presents the question whether the plaintiff has been improperly or collusively made a party for the purpose of creating a case cognizable by this court within the meaning of the section reo ferred to. It is said by the supreme court in Hawes v. Oontra Oosta Water 00. 25 Alb. Law J. 14:6, [So C. 11 FED. REP. 93, note,] that this statute strikes a blow at improper and collusive attempts to impose upon this court cognizance of cases not justly belonging to it. Before this act was passed it was settled law that although a transfer ot the subject of the controversy may have been made for the purpose of vesting an interest in parties competent, by reason of their domicile, to litigate in the federal courts, that circumstance would not defeat the jurisdiction if the transaction invested the assignee with the real interest in the subject-matter; yet, if the assignment