ANDERSON' fl. APPLETON.
rates are fixed by the commission, Hille cotnpany do not obey it within
10 days, proceedings ,by mandamus can be instituted 'by the commissioners to compel the railroad company to comply with the provisions
of the act in regard to posting in their several depots the prices and rates fixed by the commission; and, if such proceeding is not instituted by the 10 days, the corporation feeling itself thereby may take an appeal to the district, court of the state; and when the appeal is taken, and proceedings are brought in the district, it may be proceeded with as a civil action. This is due process of law. The bill and affidavits introduced by complainant tend to show that the rate fixed ,the commission. iii less thlm the cost of service, and should not be enforced, but the answer qf the defendant denies it. A q nestioll is thus presented which I shall not determine upon this motion, but leave it until the final· hearing,. . . ..'. The motion, f()r a. preliihinary injunction is denied, and the restraining order vacated. .'. . T1)e case of.the St. Paul, Minneapolis & Omll;ha. Railroad Com.pany against the defendants is 8ul>stantially the same,lI.nd the same be entered.' " , '.' . . "
ANDERSON tI. ApPLETON
Decembl:!r 1, 1887.)
«(}IrQuit OfY!ll1't, 8. D. NtnlJ York.
. , "iI: .·. REMOVAL OJ!' CAUSES-PETITION J!'OR ENTIW OJ!' COpy OJ!'
, .Defendant made the objection to theplai'ntijf'smotion to remand the cause to the state:.:court.that. p.,n. J.hill :mQtion. onlY. the. pe.ti.tion for t.ll e rempva\'"of . the cause to the Unitlld court could be Held, that a ae· fendant,'1lnp,ot.make .his Cause bY'. tilerelyassertingth'a.t 'itig. If disputeJs jurisdiction of the .federal federal court will; ott motion, rem,and the case' as soon as it sees the complaInt. 8. SAYE-CI'KZENSHIP-AcT OJ!'MARCJ1'S; 1887. , One of the.defendants resided in the state of New York. She removed a cause begun in the .. Y.0.. rk supreme. court to the Unit.ed State.s for the BOijthern dlstrtct (>f New York, Held. that uuller theVnlted St,ates 8, to the removalof ',Cl'l!1ses, proyides . that any suit '* *.*1Jl&ybe removed by the defendant a hon-residelit of that state, she was not authorized to remove the SUIt.
Plaintijf commenced suit in the New York supreme court toestlibtish II. wfll wilLof,realestate., One of the defen<,la.I),ts rllmov:ed, the the United States, circuit court fOr the Southern district of New York, but did not enter the record. Delri, that plaintiff could, without leave, enter a copy of i.i.iOn. order,and.bond, ",nd move 't.o reman.d the cause und.er. a rule of $is ado,pted' October 1, 1883, Which prOVides that. wh.en a cause 11as been temond from; a 'state court, either party: may, forthWith, causeI' copy of the ,record to be ,filed in this court, .etc.
S:Ut:E....."MOTION TO REMAND-WHAT CoNSIDERED.
In an action to estaWisb a will as a will of rfilal estate, where $ere were a large JIumber of defendants in'different states, one of the defendahtSlremoved cause 'ftom the state 'court to the United States circuit court. Held, ,tbat lIoJlilIgle, coy,t,,,O!ersy', and an action to establish a will is not a itl removal is not authorized by the United States act of 1887, relatmg to the
CONTRoVJ!lR&y-ACT OJ!' MARCH
removal of which provides that when, in any suit, * * * there shaH bea controversy which is whoUybetween citizens of different states, and which clln :be fully determined as between them, then either one or more of the defendants, actually interested in such controversy. may remove such iluit.· " On' Motion' to Remand. Thomas M. North and J; Langdon Ward, for complainant. Edward a.James, for defendant. ' LACOMBE, J. The an heir at law of John Anderson, and the residuary devisee and legatee under h'iswill, is a citizen ofConnecticut. ,>The defend/ant Kat\3. AQaerson is the widow ofJohn Anderson, and iS,a Citizen and resident of York. Laura V. Appleton and five other · defendants are heirs at law of said John 'Anderson, and are citizens and of New York. ,Agnes C. Bryant and Amanda 1. Bryant, also · defendants, are heirs at law of John AndersoiJ., and Citizens of Maryland. Jphn Weber and nine otber defendants ,are and residents oiNew ,tor,k; His alleged in the that they are united in interest · with the plaintiff, and were made defendants because their consent to be joined as plaintiffs could not be obtained. Each of these last-named defendants is a grantee, direct.orremote, of the plaintiff', and is in posses· sion of, and claims to own in fee, some portion of the real estate of which John tnderson died seized. The action was begun in the supreme court of New York,to establish the will of John Anderson, deceased, as a will of real estate. It is brought, as plaintiff claims, under chapter 3Hfofthe Laws of 1879, amending chapter 238M the Laws of 1853; or, as defendant claims, under section 1866 of the Code of Civil ,,Procedure, :w:hich reads as follows: " . "The validity, construction, or effect; under the laws of the state, ofa tes'tamentary disposition of, real property situated within the state, or, of an interest in such property which 'would to the heir of an intestate, may be detez:mined,iIl :;,n action brought for that purpose, in like manner as the "validity of a deed,purporting to convey land, may be determined. ,The judgment in such an action may perpetually enjoin Rny party from setting up or from impeaching the devisee, or otherwise making any claim in contravention of the court, as justice requires. But this section does to the not apply to a case where the question in controversy is determined by the decree ,of a, surroga.te's court, duly rendered upon allegations for that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plldntiff was duly cited, in,the special proceedings in the surrogate's court, before the commencement of the action... Tbe repealing act, chapter 245 ofthe Laws of 1880, did ,not repeal the 'l.mending chapter 316 of tbeLaws of 1879, although it did repeal the original act 00853, and there has beenin the state courts no decision of the'question whether the Code (section 1866), has superseded :he act of 1879. A determination ofthat question, however, is not need'iSposal of the now before the court. The action provided for by the Code is of substantially the same character as that provided statute.
ANDERSON V. APPLETON.
On October 19, 1887, before her time to apply expired, the defendant Laura V. Appleton dnlyfiled her petition and bond in the supreme court, and obtained an order removing the cause into this court. She did not, however, enter the record, insisting upon her right to delay doing so until the first day of the next term, April 2, 1888. (Act of March 3, 1887, § 3.) Thereupon the plaintiff's attorney, without leave first obtained, has entered a copy of'the petition, order, and bond, with a certificate of the clerk of Westchester county. The complaint, agreeably to a common practice in the state courts, was not filed with the county clerk, and hence was not certified by him. The plaintiff nOw moves to remand, basing his motion on all the papers, pleadings, and proceedings. To this application the removing defendant interposes two preliminary objections: First. That the motion is premature, contending that a plaintiff is not allowed to enter the record before the first day of next term, except by leave of the court, and then only for the purpose of moving for a provisional remedy. After removal, however, the state court is without jurisdiction, and if the defendant's objections were sound, she might, by mere inaction, leave the case stranded for six months between the state and federal jurisdictions, a.nd, in the meanwhile, lock her adversary out of both courts. Such a practice would be intolerable, and has been provided against by rule of this circuit, adopted October 1, '1883, and still in force, as fonows: , "When a cause has been removed from a state court, either party may forth. with cause a copy of the record to be filed in this court, and thereupon may notice the cause for trial in this court. although the term has commenced, and. upon filing a note of issue, may place the cause upon the calander as of the date when the record was filed. Such cause will not be placed upon the calendar until five days after the filing of the note of issue. When the cause baa been duly noticed for trial in the state court before remoVal, no new notice of trial in tbis court will be required, but the party filing the note of issue shall, on the day of filing the same, serve notice thereof on the adverse party."
Second. The defendant further objects that the petition only can be considered on this motion; it and the bond being the only papers entered. This is also a dilatory objection. If the plaintIff shows conclusively that the suit is one whibh, under the acts of congress, does not properly involve a dispute within the jurisdiction of the circuit court, that court will, when it so appears, remand the case to the state court. Ayres v. Wiswall, 112 U. S. 187, 5 Sup. Ct. Rep. 90. There is no good reason why the time of the litigants and of the court should be wasted in going through the preliminary steps of a litigation, if it is one of which the court will disclaim jurisdiction as soon as it sees the complaint. Moreover, there is here no dispute of fact, such as appeared in the cases cited in support of this objection. The complaint and the petition are in accord, so far as they set forth the facts out of which the controversy arises, and disclose the citizenship of the parties. The authorities which hold that the petition is for the purpose of a motion to remand to he considered as true, do not apply to such averments therein as are merely
conclusions df .law. A defendant cannot make his cause remova>ble merely by asserting in his petition that it. is. The preliminary objections being thus disposed of, the merits ofthe motion to remand may be , considered. The plaintiff insists that this. is not a cause, because itis' brought undel'a special statute, which is part of the probate system of the state of N.ew York; citing Reed v. Reed, 31 Fed. Rep. 49. He also claims that,the defendants Weber and others (plaintiff's grantees) are necessary parties, and must be ranged on his side of the controversy; that when the parties to the suit are so arranged, itwill be found that there are citizens of New York state on both sides of the controversy. The first of these points need not be decided; the otller is considered incidentally hereafter. The statute of 1887 has made a materilll change in the law. It providesthat "any suit of a civil nature, other than such :as involve a federal question ,or conflicting grants of two or more states, at law or equity, of which the circuit courts of the United States are given jurisdiction by the preceding [first] section, * t * brought any state court, may be removed * * * by the defendant or defendants therein, being nonre8idents of fh,at state." Under the removal act of 1875, the plainti1i' or defendant might, remove tlle cause,and irrespective of his inq.ividual residence. The removing defendant, Laulia V. Appleton, is a citizen and resident of the state of New York, and, under the clause just cited, is nOt, authori,zed tQ remoVe the suit. She claims, however, that by the which immediately follows, a sentence in the stattite of1887 different class of litigation is provided Jor, in which removal by a resident is authorized;: The sentence referred to is as follow!:!: ..And wpim, in any 'suit mentioned in this section, there shall be a controversy whir-hit' between citizens of different states, and which can be fUlly determined' as between them, then eithet one or more of the defendants actually Interested in such controversy may remove s'aid suit into the circuit cCllirt of the United States for the proper district." ' The defendant contends, as the effect of this sentence, that the only restriction now laid upon the right of removlli of separable controversies is that the,rhotion'must be made by a dejefYulant, and.that the restriction as to non-residents does not apply. See Telegraph Co. v.BroW'YI, ante, 331. ,In other words, that congress bas, provided that a person sued in the courts of his own state shall not, in the absence of a federal question or conflicting state grants, remove his cause into the circuit court, except when there may eha.nce to be other parties to the action between whom and his adversary there maybe some controversy separable from his own.. Even if it be conceded that this construction is a sound one, (and this opinion is n()t,to be taken as passing tlpon that question,).thedefendant in this suit canl)'ot avail of its benefits. ',.The defendant's main reliance is on Barney v. Latham, 103 U. S. 205, (1880,) in which there was construed a clause similar to the one cited, and known as the seoond clause of section 2 of the act of 1875, aldol19ws: ".,'
, tween citizens of dUl:erent, states, and 'WhichpQanbe fully determined as betW,een theIn, tMU1eitper one, Qf more oithe' plaintiffs or in may remove said Buit into the circuitcollrt of ,theUnftoo State,s for;the , , The court" in :Barney v. Latham, found that there" was more than ane controversy in the suit" before it, and tbat as to that "entirely separate controversy, * **' with which the defendant in the other controversyhad no necessary coimection," the citizenship of the parties to it .was' such as tdwarrlint,removal. The facts shown in that case were substantially these, (omitting all mention of minor details, such as changes of interest by death ot;'otherwise:) Latham and six associates built a railroad under an agreement by which, in oonsideration of its constrtlction, the railroad company engaged to transfer to them the lands which it might receive from time to time as grants from the state. To the expense of construction Latham contributed one thirty-seventh, becoming thus entitled to one thirty-seventh of the land and its proceeds. The five other a -land company, to which the railroad company conveyed the greater part of the lands, and which managed and sold the same. Prior, to 4he creation of the land company, there had been sales of which Latham's five associates received the proceeds. Lathamsued the land company, praying to be adjudged the owner, of his the unsold lands, and to h,ave ,accouhting for his share of the proceeds of sales already made'bythe land company. He did not stop there, however, but also sued his' five associates for an accounting as to the proceeds. of sucl,1 sales as' they had made befor,e the land compal'ty was formed. The court held that these were causes of ac· tion which, under the settled rules of pleading, need not have been united in one suit, and that there was a separable controvel"SY. Since this decision, the second clause of the act, or section 2 of the act of 1872, haS' been repeatedly before the supreme court. In no cause, however, has that court found the facts such as to warrant the holding that there was a separable controversy in the particular case, while it has affirmed and repeatedly reaffirmed the proposition that, to entitle a party to removal under, that clause,. there must exist in such suit a separate and distinct cause of action; that the case must be one capable of separation into parts. Ayers v. Chicago, 101 U. S. 184; Blake v. McKim, 103 U. S. 336; Hydp. v. Ruble, 104 U. S. 407; Corbin v. Van Brwnt, 105 U. S. 576; Fraaer v· ·Tennison, 106 U. S.191, 1 Sup. Ct. Rep. 171; Winchesterv. Loud, 108 U. S. 130, 2 Sup. Ct. Rep. 311; Shainwald v. LewiJJ, 108 U. S.158, 2 Sup. Ct. Rep. 385; Ayres v. WiswalZ" 112 U. S. 187, 5 Sup. Ct. Rep. 90; Railroad Co. v. Ide, 114 U. S.52, 5 Sup. Ct. Rep. 735jRailroad ai, v. WilBDn,114 U. S. 60, 5 Sup.' Ct. Rep. 738; Pirie v. Tvedt, 115U. S. 41, 5 'Sup. Ct. Rep. 1034, !l161; Crump v. 'Thurber, 115 U. S. 56,5 Sup. Ct. Rep. 11M; Insuranceai. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Laidl'!Jv.'Huntingtmt.121 U. S. 179, 7 Sup. Ct. Rep. 855; Hedge Cd;v. Fuller, 122 U; S.535, 7 Sup. Ct. Rep. 1265; Mining Co.v. Canal 01.,.118 U. 8.264,6 Sup. Ct. Rep. 10M; Little v.GWbs, 118 U. S. 596,
.. Anp whe'ninariyslilt
shall be a controv'ersywhich' is wholly be-