CORBIN V. BOIES.
permissible, however, in' cases where it is imp08sibl6 for'the pltrties or person removing the cause to obtain the required ooPY. If gress had intended that the lll.pse of memory on the plU;t of the attorney of the removing party shOuld be regs.uded as ,a sufficient reason, for the court to extend the time of filing the record, it would not have limited the rights to the single case of the impossibility Of taining the record from the clerk of the sta,te cQurt; and all the authorities seem to be to the same effect. See Bright v. M. et St. P. R. Co. 14 Blatchf. 214; Burdickv. Hale, 7 Biss. 98; McL6an v. Paul et O. By. Co. 16 Blatchf. 817. . This case must be remanded to the state court.
See Glove1' v. Shepperd, 15 FED. REI'. 833; Hall v. Brooks, 14 FED. REP.
CORBIN v. BOIES and others.
(Oircuit Gourt, N. D. 1llin9i'. June, 1883.)
REMOVAL OF CAUSE-THE: RULING IN BARNEY fl. LATHAM:.
Barney v. Lathatm, 103 U. S. 205, followed, where it is held that under the second clause of the second section of the act of March 3, 1875, e. 137, (18 St. pt. 3, p. 470,) when in any suit mentioned therein there is a controversy wholly between citizens of different states, which can be fully determined as between them, then either one or more of the plaintiffs or the defendants actually interested in such controversy may, on complying with the requirements of the statute, remove the entire suit.
The right to remove depends upon the case as disclosed by the pleadings when the petition for removal is filed, and is not affected· by the fact that a defendant who is a citizen of the same state with one of the plainti1ls may be a proper, but not an indispensable, party to such a controversy.
In Equity. W. J. Manning and McClellan et Oummins, for complainant. Flower, Bemy et Gregory and J. Edwards Fay, for defendants. DRUMMOND, J. Boies, Fay & Conkey were wholesale grocers engaged in business in Chicago, and Julius K. Graves became a special partner, under the law of this state, in the sum of $50,000, contributed to the capital of the firm. ,The firm was unsuccessfuLand became insolvent, and the plaintiff, a citizen of Massachusetts and a creditor of the firm, filed a bill in the state court alleging that "ari- ' ous provisions of the laws relating to special partnerships had been violated by the firm; among other things, charging that judgments it!favor of various individuals and corporations were confessed for more than was due, upon which executions had been issued, and the propbiU erty of the firm taken. The First National Bank of alleged, had obtttined a judgment on which execution had been issued by a wrongful preference given by the firm. The bill also alleged
that preferences were given in favor of citizens of Massachusetts. The Inrst National Bank of Chicago filed a petition in the state court, and gave a bond praying for the removal of the cause to this court under the act of. 1875, alleging that there was a oontroversy which was wholly between the plaintiff and the First National Bank, and which could be fully determined as between them. The parties now come before the court, and the plaintiff raises the question whether the case was removable under the statute. There was no issue formed in the state court, and therefore the question must be decided upon the bill and the petition of the First National Bank, and it seems to me tl:;1ere can be no doubt but that there is a controversy which is wholly between the plaiI?tiff and the bank; that.is to the judgment was a valid judgment as against the firm, say, and the plaintiff as one of its creditors. The bank is not interested in any controversy which the plaintiff may have with other judgment creditors of the firm. Its position is that the judgment in favor of the bank is valid, irrespective of what may be true of any other claim " or judgment. It is objected that there are other defendants who are citizens of the same state with the plaiutiff, and if the court takes jurisdiction of the carse and of the various controversies which crise, it must decide controversies between citizens of the same state. That may be true, 'but the supreme court of the United States has decided, in Barney v. Latham, 103 U. S. 205, that in a case like this the applicaton for removal takes with it to the federal court. the whole case, and therefore the controversies between the plaintiff and the citizens of Massachusetts,'who are defendants with others, must also come into this This being in the nature of a creditor's bill, which charges illegal and fraudulent acts affecting the rights of the plaintiff against different individuals of different states and different corporations, it can hardly, therefore, be considered a case where the different controversies are so far separated as that one can be removed without the others. In Bq,rney v. Latham one of the objections taken to the reo moval of the case was that the Winona & St. Peter Land Company, one of the defendants, was a corporation of Minnesota, of which state one of the plaintiffs was a citizen; and the court held, notwithstanding that (act, the cause was removable, at the same time saying that to the other controversies in the case, independent of the one which authorized the removal, the land company was not an indispensable party, although it might be a proper party. That is true "in this case. The citizens of Massachusetts who are made defendants may be proper parties, but they are not indispensable parties, to the controversy between the plaintiff and the First National Bank of Chicago. The bill might have been filed by the plaintiff against the members of the firm and the bank, without making the other defendants parties. And then the defendants, citizens of Massachusetts, have not been served with process, and never may personally appear in the case.
The only question there can be, therefore, in this case, is whether congress had the power to authorize the removal of a cause where there was one controversy between citizens of different states, and another betweeu the plaintiff and some defendants who were citizens of the same state with him. No question seems ever to have been made by the courts as to the right of congress to p-ass such a law, a.nd therefore I think the court will order the transcript to be filed and the case to be docketed in this court.
See Oit1l of Ohicago v. Hutchinson, IS FED. liEF. 129.
COireuit Oourt, S. D. New York.
REMOVAL-AcT OF' 1875, 2-BEVERABLE CONTROVERSy-MnmtG CORPORATION-FRAUDULENT ORGANIZATION. . .
An action against several defendants may be removed to the circuit court by one of them, against whom alone there is a separable controversy, which can be fully determined without the presence of the other defendants, no matter wha.t additional controversies or grounds of action the eomplaint may contain.
SAME MINING CORPORATION FRAUDULENT ORGANIZATION-ILLEGAL ISSUlll
Where the trustees of a mining company, with $10,000,000 nomil)alcapital, at its organization issued all its stock as full-paid, in the purchase of certain mining property worth less than $100,000, and then, III pur.<ulj.nce of a previous agreement with the grantor of the land, took back an assignment of all the stock to themselves, and paid to the seller of the property less than $100,000, and then rut the stock on the market as full-paid stock, and sold it for their individua account,some of which the in an a,etioll brought by the plaintiff to compel the trllstees individually to " account" for $10,000,000, and also that each of them severally account for their profits on such sales of stock;, that tho complaint charged no joint account or cqmmunity of interest in such sales or profits on stock sold, and that in respect thereto the controversy was severable, as neither, if accountable at all} could be held for the profits of the others, and the profits of each could be aetermined without the presence of the other defendants, and that the cause was, therefore, removable.
Motion to Remand. John R. O'Donnell and Grove M. Harwood, for plaintiff. E. F. Hyde, for defendant. BROWN, J. This action was brought in the superior court of this city by the plaintiff, as a stockholder in the Silver Era Mining Company, in behalf of himself and all other stockholders. The company was organized as a corporation under the laws of this state in February, 1880, to have a capital of $10,000,000, divided into 100,000 shares of $100 each. The defendants in the suit are the corporation, and five individual defendants who are alleged to have been the trustees of the corporation at the time of its formation, and during the first year afterwards. Three of the defendants, as well liS the plain-