GUDGE:t 1:. WESTERN N. C. R. CO.
GUDGER V. WESTERN
N. C. R. CO. and others.
(Circuit Court, W. D. North Oarolina. Spring Term, 1884.)
, PLEADING AND PRACTICE-COMMON-LAW FORMS OF ACTION-NORTH CAROLINA..
Although the old forms of actions at common law have been abolished by the constitution and statutes of North Carolina, and a civil action sUbstituted as a remedy, in all cases at law and in equity the old distinctions must be kept in view in giving redress.
SAME-AcTION AGAINST CORPORATION-EQUITABLE RIGHTS OF PRIVATE PERSONS IN CORPORATE PROPERTY.
The grafJamen of the action being a tort alleged to have been comm'tted by the defendant corporation alone, the action is properly brought, and can be maintained against the corporation without the joinder of private individuals who claim to he the equitable owners of the property held and employed by the corporation. Such individuals might be made liable by way of adoption and ratification of the wrong done by their agents, but they are not necessary parties to this action.
REMOVAL' OF CAUSE-NoN-RESIDENT DEFENDANT BY CONSENT.
Whether, after action brought in a state court, (the necessary parties being re"idents of the same state,) a non-resident-admitted by consent as a defendant-can have a removal to a federal court, qUl1!re. To entitle a parly to a removal, under section 2 of the act of March 3, 1875, c. 137, there must exist a distinct cause of action in the suit, in respect to which
SAME-DISTINCT CAUSE OF ACTION.
all the necessary parties on one side are citizens of different states from those on the other. 6. SAME-!::lEPARATE CONTROVERSY A.OT OF MARCH 3, 1875, CR. 137. The word" controversy" is employed in the statute, March 3, 1875, c. 137, and a "separate controversy" is not identical in signification with a "separable cause of action." There may be separate remedies against several parties for the same cause of action, but there is only one subject-matter involved. !::leparate controversies, within the meaning of t.he statute, are separate causes of action, either of which mip;ht be sued on alone. DEFENDANTS. 6. When a person has been injured by the tortious acts of several parties, he has for the injuries sustained one cause of action against all; but he may seek his remedy by suing any or all the wrong-doers. If, in an action against one, he has judgment, he eannot afterwards prosecute a joint action. because the prior judgment is, in contemplation of law, an election on his part to purSU2 his several remedy.
7. SAME-ACTION AT LAW-EQUITABLE RIGHT-MATERIALITY.
To constitute a controversy in an action at law there must be allegations on one side and denials on the other, making an issue either in fact or in law. An equitable right claimed by an individual in the property of the corporation sued is not material when that property is not the SUbject-matter in controversyat law. 8.
SAME-PRACTIOE IN NORTH CAROLINA.,.-CIVIL ACTIONtI-LAW AND EQUITYPUACTICE IN UNITED STATES COUR'rs.
According to the liberal mode of proceeding in civil actions in North Carolina parties may assert equitable rights llnd have them enforced in the same action; but this is not allowable in the federal courts, where legal and equitable causes of action and defense cannot be blended.
ELECTION BY PLAINTIFF AS TO DEFENDANT -
Election of remedy is a right which the law gives a plaintiff in action of tort and this right cannot properly he embarrassed by subsequently made ants raising new and independent issues in the pleadings.
Motion to Remand Case Removed from the State Court. J. M. Gudger and J. H. Merrimon, for plaintiff. Henry If Cummings, M. E. Carter, and D. Schenck, for defendants. DICK, J. In the complaint filed in the state court the plaintiff alleges that the Western North Carolina Railroad Company is a corporation duly constituted and organized under the laws of this state, and by virtue of such laws was authorized and empowered to survey, locate, extend, build, and complete a railroad through the counties of Buncombe and Madison to the Tennessee line, near or at Paint Rock; that in the exercise of such powers and in surveying the track of said railroad through the main street in the town of Marshall, in Madison county, (without the consent of said town,) it wrongfully, carelessly, and negligently placed and fixed firmly in the ground in said street a wooden stake, against which the plaintiff accidentally struck his foot, whereby he was thrown to the ground and the bone of his right thigh was broken; and by reason of said injury he has been damaged $10,000, and he is entitled to recover said sum from the railroad company defendant. The substance of the complaint thus briefly stated shows that the civil action brought originally against the defendant corporation is in the nature of an action of trespass on the case at common law. Although the old forms of action at common law have been abolished by the constitution and statutes of this state, and a civil action substituted as a remedy in all cases at law and in equity, the old distinctions must always be kept in view in giving redress. As the gravamen of this action is a tort alleged to have been committed by the defendant corporation alone, the action was properly brought and could have been maintained against the corporation without the joinder of A. S. Buford, T. lVI. Logan, and W. P. Clyde, the other defendants, who claim to be the equitable owners of the property held and employed by the corporation. It may be that, as the act complained of was done in the interests of the owners of the property, and for their use and benefit in carrying out their purposes in constructing, the railroad, they might be made liable by way of adoption and ratification of the wrong done bl their agents; but they are not necessary parties to this action. The record of the case shows no order of the state court allowing or directing the individual defendants to be made parties, but it is conceded by the counsel of plaintiffs that, by consent, they were lowed to become parties, and they filed an answer setting up their equitable rights of property at a term of the court subsequent to the commencement bf the action. When admitted as parties the individual defendants filed Ii petition to remove the case in this court under the second clause of the se,cond section of the act of March 3, 1875. In Gibson v. Bruce, 108 U. S. 561, S. C. 2 Sup. Ct. Rep. 873, the supreme court decided that "a suit cannot be removed from a state. court, under the act of 1875, unless the requisite citizenship of tho
GUDGER V. WESTERN N. O. R. 00.
parties exists, both when the suit was begun and when the petition of removal was filed." . It is insisted by the counsel of defendants that this rule cannot apply to a case like the one before us, where persons who were nonresident citizens at the time of the commencement of the action, and who were then interested in the asserting of property held by the defendant corporation, and who have been admitted as parties at a subsequent term for the purpcse of protecting their rights. I was much impressed with the plausibility and force of the views of the counsel upon this subject, but it is not necessary forme to decide the question, as there is another question involved in the case upon which to grant an the judge in the state court decided correctly in order oi removal to this court. From this decision an appeal was taken to the state supreme court, where it was affirmed, and I concur in the legal principles announced. Gudger v. W. N. O. R. R. 87 N. C. 325. ' In construing the second clause of the second section of the act of 1875, Chief J ustice WAITE, in speaking for the supreme court, said, in Hyde v. Ruble, 104 U. S. 407: "To entitle a party to a removal under this clause there must exist in the \ suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different states from those on the other." to the case of Barney v. Latham, 103 U. S. 205, he further said: "When two such causes of action are found united in one suit, we held, in the case last cited, there could be a removal of the whole suit on the petition of one or more of the plaintiffs or defendants interested in the controversy, which, if it had been sued on alone, would be removable. But that, we think, does not meet the reqUirements of this case. This suit presents but a single cause of action; that is to say, a single controversy. The made by the pleadings do not create separate controversies, but only show the questions which are in dispute between the parties as to their one controversy." The word "controversy" is employed in the statute, and a separate controversy is not identical in signification with a separable cause oj action. There may be sepa.rate remedies against severa.l parties for the same cause of action, but there is only one subject-matter of controversy involved. Where there are separate and distinct causes of action in the same snit, either of which might have been sued on alone, then there are separate controversies within the meaning of the statute. Boyd v. Gill, 19 FED. REP. 145, and cases cited. In the case before us the plaintiff alleges but one cause of action, and sues only the corporation defendant. The other defendants subsequently became parties defendant by consent, and in answer to the allegations against their co-defendants they say that they havo no knowledge or information sufficient to form a belief. When a person has been injured by the joint tortious acts of several
parties, he has, for the injury sustained, one cause of action against all; but he may seek his remedy by suing any or all of the wrongdoers. If he sues each oue separately, the same subject-matter of controversy is involved in all the actions, and he can have but one satisfaction for the same injury. If he sues anyone of them separately, and has judgment, he cannot afterwards seek his remedy in a joint action, because the prior judgment against one is, in contem. plation of law, an election on his part to pursue his several remedy. Ses8ions v. Johnson, 95 U. S. 347. This election of remedy is a right which the law gives to a plaintiff in actions of tort, and in the case before ns he elected to pursue a several remedy against the corporation defendant, and this right cannot properly be embarrassed by subsequently made defendants raising new and independent issues in the pleadings. The plaintiff alleges no cause of action against the individual defendants, and in their answer they do not admit any participation in or 'liability for the wrong alleged against their codefendant. If the cause was separated as to the defendants, there .would be no complaint as against the individual defendants, and consequently no issues could be made. To constitute a controversy in an action at law there must be an allegation on one side and a denial on the other, making an issue of fact or an issue of law. The individual defendants claim an equitable right in the property held and employed by the railroad company, which is not the subjectmatter in controversy in this action at law, and cannot in any way be material unless the plaintiff obtains judgment and E\eeks to have the same satisfied out of the property claimed by the individual defendants. Under the liberal a.nd convenient mode of procedure in civil actions in this state, parties may assert equitable rights and have them adjusted, proteoted, and enforoed by the oourt in the same ttction; but this is not allowable in the federal courts, where legal and equitable causes of action and defense cannot be blended. Hurt v. Hollingsworth, 100 U. S. 100. If the cause before us was, in other respects, properly in this court, the defendants in the action at law could not in this manner avail themselves of the equities set up in their answer, which is in the nature of a cross-suit or cross-bill for injunctive relief. As this case falls clearly within the rule stated in Hyde v. Ruble, supra, and adhered to in Winchester v. Loud, 108 U. S. 130, 8. C. 2 Sup. Ct. Rep. 311, the motion to remand is allowed, with costs against petitioners, and the proper order may be drawl;}.
L. INS. CO. V. CHAMPLIN.
INS. Co. v.
(':1rcuit Court, S. D. New York. July 18, 1884.)
Where all the parties on the one Bide are residents of different states from any of parties on the other side, a Buit containing out a single controversy may be removed by either one of the plaintiffs or defendants, under the second clause of 2 of the act of 1875; or by all the plaintiffs or by all the defendants, jointly, under the first clause. 2. SAME-CONSTllUC1'roN. Tlw natural import of the language of one part of a statute should not he narrowed by construction though it overlap in part the provisions of another part of the same statute, where both will still have a distinct and exclusive purpose to subserve. 3. SAME-SINGLE CO:-iTROVERBY. Only the first cl,mse of the above section embraces cases of a single plaintiff and dafendant; only the second clause embraces cases in which removable and non-removalJle controversies are joined in the same suit; both clanses cover cases having several plaintiffs or defendants, and only a single controversy, and that a :removable one. 4. SAME-CITIZENSHIP. Where a controversy is a removable one under the United States constilution by reason of the citizenship of the several plaintiffs and defendants in dif· fen-nt states, the individual right of either defendant to remove the cause has been recognized by congress in the second clause of section 2 of the act of 1875; and this clansI.' should therefore be const,rued as embracing suit.s having but a sing'le controversy, in furtherance of the apparent general intent of the act of 1875, to provide for the removal of cauSeS between individuals up to the limits of the undoubted intent of the constitution, since the language of the second clause IS broad enough to include this, and there is no other clause sutticicnt for that purpose.
I. REMOVAL OF CAUBE-AcT OF 1875-CITIZENBHIP.
Motion to Remand. The complainant, in March, 1879, insured the life of Edmund W. Raynsford, ilJ. the sum of $10,000, by a policy made payable to his executors, administrators, or assigns. The insured resided at Providence, Rhode Island, and died there in January, 1883. The defend· ant Champlin, a citizen of that state, was duly appointed administrator of his estate, and subsequently took out ancillary letters of administration in this state. The deceased left a widow and one son, Charles K. In March, 1881, he had assigned the policy to the defendant Sparrow. The validity of this assignment being contested by the administrator and the distributees of the estate of the deceased, the complainant filed a bill of interpleader in the supreme court of this state, against all the above-named claimants of the insurance money, who are aU non-residents of this state, offering to pay into court the money due on the policy. The defendant Champlin removed the cause to this court, upon his own petition, under the first clause of section 9 of the act of 1875. On motion of the defendant Sparrow the cause was remanded to the state court, because all the defendants did not join in the petition, as required in a proceeding under the first clause, in which the word "party" is construed to mean all who are upon the same side of the controversy.