OONTDlENTAL NAT. BANE. OF NIlW YOBE.
NAT. BANK OF NEW YORK, and another, Security.(Circuit Oourt, N. D. GefJII'gia. 1882.)
REMOVAL OF CAUSE-CONTROVERSY MUST lJE SEPARABLE.
One of two defendants jointly sued in a state court cannot remove the cause into the federal court on the ground of diversity of citizenship between himself and plaintiff without shoWing that the controv.ersy is separable.
Motion· to Remand. Reuben Arnold and E. N. Boyles, for plaintiff. Mynatt d; HowelZ, for defel1d'ants. McCAY, D. J. The Continental National Bank of New York sued out an attachment in the state courts against Folsom, and gave Wallace ds security on the attachment bond. . This is a suit brought on the 'bond by Folsom 'against the bank and Wallace in the state court. The bank, as a citizen of the state of New York, filed a petition for the removal of the cause to this court, setting up that in the cause there is no controversy whatever between it and Folsom; that, Wallace,a citizen of Georgia, is merely a nominal party, and that Folsom is a citizen of Georgia. The court refused to pass the order for removal. The petitioner, nevertheless, filed papers in this court, and now Folsom sues to remand the cause to the state court. The latest' case on this subject that has been reported is Hyde v. Ruble, 104U. S. 408. That was a suit on what was alleged to be a partnership contract of bailment. Certain of the alleged partners were of another state, not only from plaintiff, but from Ruble, the resident defendant, and they had filed a plea that they were not partners, and that the contract had been performed. They moved the removal of the cause. The court (the chief justice delivering the opinion) decided that the second clause of section 639 of the Revised Statutes is repealed l;>y the act of 1875. The court further decided that under the second clause of the second section of the act of 1875, to make the controversy removable in a case where all the parties on one side were not citizens of a different state from the parties on the other side, must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are (Jitizens of different states from those on the other. '
*Reported by W. B. Hill, Esq" of the Macon, Ga., bar
. Jl!EDIUU.L ·UPOBTEB.
This is a suit on a bond-a joint bond. The plaintiff claims a right to sueal! the obligors on the bond. He has a"perfect right to do this; this is his cause of action. It is not against the bank, nor both. .Even if the bond were several as Wallace, but it well as joint, the plaintiff would have a right to treat it and sue on it as a joint bOJ,ld. And this he has done. The cause in 104 U. S. is much stronger than this'. There, on this question of partnership, the controversy might be fairly said to be a separable one, but the court refused the petition for removal because the plaintiff's complaint in the cause of action was joint. IIere there is no separate obligation to the plaintiff. The parties are .bound jointly, or not at all. What would be a good defense for one would be good forthe.other. What would charge one would equally charge the other. . Under the ruling in the case I have referred to, I feel compelled to remand the cause. Let an order ,be drawn accordingly.
TAYLOR v. HOLMES and others.
w: D. North
Oarolina. October Term, 1882.)
EQUiTY JURISPRUDENCE-RULES WHICH GOVERN.
The federal court can take. judicial notice of the laws of the several states Of the Union, and in construing the constitution and statutes of a state, and the laws which regulate the rights of proper,ty in a state, it .will be governed by the decisions of the highest court 'of the state; hut upon legal questions of a more general nature, and in the principles of equity jurisprudence, a federal court is influenced but not bound by the decillions of state courts.
3. EQUITY PLEADING-SUIT BY.MARRIED WOMAN.
A feme covert must. sue and be sued jointly with her husband, unless she claims a right in opposition to him, when her prochein ami, with her consent, may sue on her behalf, and her husband be made party defendant.
AU parties interested in or entitled to ljtigate the sll-me questions in controverRy, are necessary parties, and must be joined.in the suit.
j). DEMUIlRER'- WHAT IT
A demurrer admits only matters of fact positively alleged, and not conclu" sions of law, or mere pretenses and suggestions, or the correctness of th8 ascription of U lJurpose', when 'not justified by the fadt po'sitively alleged.