7 Sup., Ct. Rep. 32; Brooks v. Olark, 119 U. S. 502,7 Sup. Ct. Rep. 301. Viewed in the light of these decisions, this suit presents no such distinct and separable causes of action, as werll found in Barney v. Latham. There is here but a single controYersy, : Is ,the will of J obn Anderson valid as a. will of real estate? and its characteris not changed merely by rearranging the parties to it. It does not become separable into parts because some of the defendants are interested jointly, and others are interested severally,. in ita determination. There may be a controYersy as to its validity anyone of the plaintiff's grantees and the heirs at law; butsuol:! controversy is, in all respects, identical with the between the plaintiff and the heirs at law. The controversy here is not separable, under the decisions, and the motion to remand is therefore ,granted.
J. B. PACE TOBACCO CO. and others.
(Oircuit Oourt, 8. D. NtIlJ York; December 14,1887.)
1. REMOVAL OF CAUSES-CITIZENSHIP-AcT OF MARCH 3,1887. Under the aqt of congress March 8, 1887, § 2, providing that a suit brought in any state court, wherein the controversy is between citizens of different states, and the amount in dispute exceeds, exclusive of interest and costs, the sum of be removed to the circuit court of the United States for the proper district by the, defendant or, defendantlJ therein, being non-residents of that state, "'defendants who are residents of the state in which suit is brought cannot remove, the' caus6', though plaintiff is a resident of another state. , 2. SAME-CITIZENSHIP,-AOT OF MARCH 8, 1887-SEPARABLE CONTROVERSY. Action was brought by a non-resident assignee of an insolvent debtor to compel the assignment, by a corporation, of stock belonging to the debtor. at a sale on execution levifld on the stock subsequent to the debtor'sassigninent, intervened,were made parties defendant, and asked for are· 'moval of the cause as to them, under act of congress March 3. 1887, \} 2, providingthat, "when there shall be a controversy which ill wholly between citizens of different states, and which can be fully determined as between them. then either one or more of the defendants may remove said suit," etc. Held that, the cause of intervenors being inseparable from that of the corporation, it could not be removed.
Reynolds « UQ,'l'7'ison, for plaintiff. North, Ward« Wagstaff, for defendants.
LACOMBE,J. The plaintiff, a resident and citizen of California, is. under decree of a California court, the receiver of the late firm of Esberg, .Baahman & Co. All the defendants are citizens and residents of New York. The firm of which plaintiff is receiver held and owned 273 shares of stoak of the J, B. Pace Tobacco Company. The original certific!J,te of stock is now held by plaintiff', with an assignment and ,power of uttorney from the assignor. He brought this action in the state court against tlle company, as sole defendant, to compel the transfer of ,theae sp.are8
WELLER V. J. B. PACE TOBACCO CO.
upon its books, and the issuing of a new. certificate to himself as receiver. The assignment waR made in October, 1885, and the suit was begun in 1886. After a trial, but before judgment was entered, the defendant Demuth & Co.. applied to the court as intervenors, and, on their motion, the trial was set aside, and plaintiff ordered to bring them in. Thereafter he amended'· his summons and complaint, making Demuth & Co. ano. Scholle Bros. co-defendants with the company. The relation of these latter defendants to the subject-matter of the controversy is as follows: Subsequently to the assignment to plaintiff, separate attachments were sued out by the defendant firms against two of the plaintiff's assignors, and levied on the stock by filing notices with the company. Demuth & Co. prosecuted their suit to judgment, and bought in the interest of defendants therein when the stock was sold by the sheriff 'under execution, Subsequently Demuth & Co. brought an action in the supreme court of this state to compel the J. B. Pace Company to transfer the stock to thflm on the books of the company. They obtained judgment therein, the transfer has been made, and certificates thereof issued to them by company. The defendants,' Demuth & Co., and Scholle Bros. have removed this suit into this court, and a motion is now made by the plaintiff to remand the same. The case is governed by the act of March, 1887, which was passed befure the intervenors appeared. The second clause of the second section of this act (which deals with suits not concerned with federal questions, or the conflicting grants of differf'nt states) has materially changed the law permitting removals. The clause is as follows: "Any other suit of a civil na.ture, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, [t. e., in which there shall be a controversy between citizens of different states, in which the matter ill dispute exceeds, exclusive of. interest and costs, the sum of two thousand dollllrs,] and which are now pending. or which may hereafter be brought. in any state court, may be removed into the circuit court of the United States for the proper district by the difendantor defendants therein, being non-residents of that state." Prior to the passage of this act, removal could be had in this class of cases by either plaintiff or defendant, and irrespective of residence. As all the defendants in this suit are residents of New York this clause gives them no right to a removal. It is claimed by them, however, that the defendants other than the company may remove under the next succeeding clause of the act, which is as follows: "And when, in any suit mentioned in this section. there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or mOre of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district." Whether or not .the defendant who may move under this clause must be a non-resident of the state in whose court he is sued, need not be determined on this motion. However it may be interpreted, it certainly was never intended to provide for precisely the same class of suits as art:.
, FEDERAL REPORTER.,
,already by chiuS8 o(the section.' The portion of the .section l 11st quoted (which, wi,th singie change, is textually *e same as tile last Clause of section 2 in the removal act of 1875) is ineffect a saving, Wheri, ar.ranging parties'to al?Y suit according to ,citizens oOhe!¥tine state are found on both sides of a litigatio Il , re!D()val cann()t'or.dinarily be had, because, under the decisions; the (or contro,,:ersary) is not citizens ofdifferent states., The.iiffect of the, clause above is to proyide that,in cases a or defendants may nevertheless remov:s, upon showing 'that thereig'in the suit a controversy ,wl:lichiswholly between such defendaDt or defendants on the side, and citiz.Ejns of other !;ltates on the other., Vhdel: the decisions, moreover, this "controversy in a suit" must be that is to say, tqere must be, in.suchimit, a separate distinct cause ofaction, alid, the case must be one capable of separation .into parts. The clause last quoted has' been many times considered by the supreme court, but its decisions will be searched iiI vain for a single instance whete it has been applied to a case in which all the plaintiffs are Citizens of one state, and all the defendants citizens of another. Ba'f1l$!J v. Latham, 103 U. S. 205; Blake v. McKim, Id. 336; Harter v. Kernochan, Id.562; Hyde v. Ruble, 104 S. 407; Corbin v. Van Brunt, 105 U. S. 576.J!lraser v. Jennison, 106 U, S. 191, 1 Sup. Ct. Rep: 171; Winches'ter v. Loud. 108U. S. 130, 2Sup. Ct. Rep. 311; Shainwaldv. Lewis, 108 U. S. 158, 2 Sup. Ct. Rep. 385; Cable v. Ellis, 110 U. S. 389,4 Sup. Ct. Rep. 85; Ayersv. Wiswall,112U.S. 187,5 Sup. Ct. Rep. 90; Railroad v. Ide, 114 U.S.' 52, 5 Sup.Ct. Rep. 735(Railroadv. Wilson, 114 U. S. 60, 5 Sup. 73S; Pirie v. Tvedt, .115 U. S. 41, 5 Sup. Ct., . .1034,1161;' Crump v. Thurber. 115 U. S. 56, 5 Sup. Ct. Rep. 1154; Starin v. New York, 115 U. S. 248,6 Sup_ Ct. Rep. 28'; Sloane v. Anderson, 117 U. S. '275,6Sup. Ct. Rep. 730; Insurance Co. v. Huntington, 117 U.S. 280, 6 Sup. Ct. Rep. 733; Rand v.Walker, 117 U. S. 340,6 Sup.Ct. Rep. 769; Co,:,ev. Vinal, 117 U. S. 347,6 Sup. Ct. Rep. 767; Mining Co. v. Canal Co., 118 U. S. 264,6 Sup. CLRep. 1034; Little v. Gibbs, 118 . U. S. 596,7 Sup. Ct. Rep. 32; Brook v. Clark, 119 U. S. 502, 7 Sup. 'Ct. Rep. 301; Laidly v. Huntington, 121 U. S. 179,7 Sup. Ct. Rep. 855; Transportation Co. v. Seeligson, 122U;S.519, 7 Sup. Ct. Rep. 1261; Hedge '00. v. FuUer, 122 U. S. 535,7 Sup.Ct Rep. 1265. . The suit in 'this case is clearly within the class covered by the second clause, as a suit in which there is a controversy between citizens of different states; and, even if the citizenship of the parties were such as '·tqmake the provisions of the tb,irdclause of .the act of 1887 applicable, the suit does under the declsion, present separate and distinct causes of action, and is not one capl:loQle of separation into parts.
DAVIS 11·.KANSAS CI'rf,S. & M. R.
CITY, S. & M. R. Co.
w: D. T6nneuee.
JURISDICTION-AMoUNT m CONTaOVEBSy-ACT OF MARCH 8,1887-AMENDMEN'l' OF THE DECLARA1'roN. . In an action fQrdamages to property by a railroad company occupying .. street, the ad d4mnum of the writ and declaration was laid at $1.500 in ignorance of the new act of congress of March 8, 1887. increasing the minimum limit of the jurisdiction to $2,000; but, on motion to dismiss, the plaintiff asked leave to amenet by increasing the ad darTJ,num. Held,tb.at the amendment should be allQwe!i. since it'did not satisfactorily appear from the nature of the case, alid'the circumstances shown, that the damages were not in fact larger than the original It is only when the court can plainly see that its jurisdiotion is being fraudulently invoked that it will deny the amendment or the cause. . .
O. H.Trimble, (J. M. Greer, with him,) for defendant.
HAMMOND, J. The motion to dismiss for want of jurisdiction is based on ,the fact that the ad d(L'n'IInqm in the wtit and declaration is less than $2,000, the amount fb:edas the minimum limit of our jurisdiction by the act of March 3, 1887 373, (24 St. 552,) the suit having been commenced a days after that act was passed, evideI\tly in ignorance. of the changes made by The moves to amend the writ @d declarationbyjncreasing ad damnum to $2,500, but this motion the d,l!fendant resists,on the ground that it is manifestly made to give the court a fictitious jurisdiction. , By the Revised Statutes, (se,ctions 948 and 954,) thl.'l power and duty of the courts to allow amendments most liberally has been longestablished, and no practice is more generous in that regard than that of our federal courts. In one case, the ad damnum was amended, after verdict, to include ,damages given by the jury I which were larger than the sum claimed by the writ and declaration. Elting v.CkumpbeU, 5 BIatchf.18S. If the factitious circmpstance of the passing of this new act ofcongress a few days before the suit ,was brought did not exist.in this case, no resistance tothis motion would be thought of by the defendant; and the position that the plaintiff should show, by affidavit or other proof, that he had reasonable grounds. for a larger estimate of his damages than he made when the suit was brought, would not be taken, for it is certain that neither in the state practice, nor our own, has that ever peen required on a motion to amend the ad. damnum in a case. where the cause of action was like this. . The plaintiff has a right to claim what daJ;Ilages he pleases, either when he institntes his suit, orafterwards by amendment,and I cannot think that this adventitious circumstance of a change in the aJIlount of our jurisdiction can at all influence that right. There is a strong suspicion, no doubt, that he wishes make the change to requirementS. qf the new act of and that may be the fact: yet we not that. it is a fact, and in the very nature of the case
w. M.Randolph, for plaintiff.