STANBROUGH V. COOX.
COOK et al.
'(Clircuit Court, N. D. Iowa, E. D. April 20, 1889.)
REMOVAL OF CAUSEs-RIGHT OF REMOVAL.
In cases coming within the removal act of 1887, § 2. c1. 8. providing that suits "which include a controversy which is wholly between citizens of different states, and which can be fully determiued as between them, are removable by either one or more of the defendants actually interested." the right of removal is given to defendll.uts interested in the controversy, irrespective of their residence or citizenship.
Plaintiff. a citizen of New York, brought his action in Iowa for the recovery of the immediate possession of certain realty and damages for injury,to buildings and for con version of crops. Citizens of Iowa and of Vermont 19'el'e made defendants. It was not averred that they claimed title jointly or tInder a common source. or bad committed the injuries jointly, but the peti. tion was drawn under the Iowa statutes for settling all adverse claims of title on the part of any and all the defendants. An amended petition set out that certain of the Iowa defendants had executed a leasein their own right to the other Iowa defendant, and that he held possession under this lease. Held,·that there was a separable controversy between the plaintiff and the Iowa defendants, which was removable on the application of the alleged lessee.
.Henderson, Hurd, Daniels &- Kiesel, for defendants.
SHffiAfl, J. At the March term, 1889, of the district court of.Delaware county, Iowa, a petition was filed by the plaintiff, R. M. Stanbrough, in which he claimed to be entitled to immediate possession of certain real estate situated in Delaware county, as the owner tltereof in fee-simplei that Edward.Cook was in possession thereof as a. tenant; that he had converted to his own use growing crops on the property, and- had damaged the buildings; that for the use of the property and the damagl*j named the defendant Cook was indebted to plaintiff in the sum of $1',000; that the said Cook has been in the occupancy of the premises since the 15th day' of September, 1888, claiming to hold the same as tenant of one or more of his co-defendants. The parties other than nRllled as defendants are Susan Daniels, Lucy Daniels, and the firm of Henderson, Hurd, Daniels & Kiesel. The prayer 'is for a judgment awarding the immediate possession of the realty to the plaintiff and for $1,000 damages against the detimdant Cook, the same to be binding upon ,such of c.o-defendants as are by said Cook or by their own pleadings to be the landlord of said Cook. Under the provisions of the Code of Iowa, the petition is in form sufficient to enable the plaintiff to _establls)J, if the factsjusti(yit, the vaiidity of his title,ngainst all the deobtain an order 8,nd writ to put him into the immediate posses,sio,n of the premises, and to a judgment for damages aga;nst the defendant ·Cook. When the action was brought, and at all since then, .the. plaintiff waj;l a pitizen of the state of New. YOl"k,the.defellduuts
.Calvin Yoran and Powers &- Lacy, for plaintiff·
Cook and Henderson, Hurd, Daniels & Kiesel were and are citizens of Iowa, and ,the defendants Susan and, Lucy Daniels were and are citizens of Vermont. The realty consists of about 234 acres of lan.d and the improvements thereon, 6fa'vahieexceeding $2,000. At the March of the state court the defendant Edward Cook filed a petition and asking a removal of thecauseintd this court. A trallscript of the record having been flIed, the plaintiff now moves for an order remanding the case on the ground that the right of removal did not exist in favor of the ,defendant Cook, and court is without jurisdiction. The right of removal is claimed under the clause of section 2 of the act of congress approved August 13, 1888, which provides that, "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 fuUy.determined as , between them, then' either one ,or more of the defendants' actually inter, ested in such remove said suit into the circuit court of the United States fortha proper, district." , The most important question presented for decision i,s whether under this clause, ,under any d.rcumstances, a removal can be had at the in.stance of a defendant residing in the state wherein the suit is brought. The contention on part of plaintiff is that the right of removal is restricted to non-resident defendants; even if it be true tpat the suit is one within the original jurisdiction of the Uni,ted States circuit court,andembracing a controversy whoUj"between citizens of different states separable from the other issues therein; Section 2 of the act defines four general classes of removable cases: (1) Suits of a civil nature, at law or in eq-uity, wherein original jurisdiction would exist in the;United· Statescir·cuit court under the provisi,ons ofBectibnl of the act, by reason of their 'arising undedhe constitution, laws, or treaties oftha United States, 'and involVing over $2,000, are removable by the 'defendant or defendants. (2) ;Suits of a civil nature, at law or ineqllity, wherein original jurisdiction ,would exist in the United States circuit court under the provisions of 'section 10f the act, by reason of the controversy being between citizens of different states, and involving over $2,000, or by reason of its ,being .a controversy between citizens of the' same state claiming lands under grants from different states, or by reason of its being a controversy between citizens of a state and foreign 'states, citizens, or subjects, and involving over $2,000, are removable by the defendant or defendants of the state wherein suit is brought in therein, if they are ,;the state court. (3) Suits of:li; icivil nature, at Jawor in equity, coming ,within the original jurisdiction'of the United States circuit court for any ,of the reasons enumerated bi tne two preceding paragraphs, and which include a controversy which is wholly between citizens of different states, 'and, which can be fully <letermined as between them, are removable by -either one or the, defendalitsactually interested in such contro'versy. (4) Suits in which: there is a controversy between a citizen of the 'state wherein thesuit,js brought and'S: citizen of another state may be removed 011 the ground, bf prejudice or local influence by a defendant, pro"vided he is a citizen ofa state other than that in which the suit pend-
STANBROUGH 17. COOE.
ing. ,In the . firstcl.ause ofsection 2 covering the first classification given above the declaratioIl is that the suit may be removed by the defendant or defendants. In the second clause of the section covering the second classification· above given the declaration is that the suit may be removed by the defendant or defendants, being non-residents of the state wherein suit is pending. In the third clause of the section covering the third classification above given the declaration is that anyone or more of the defendants actually interested in such controversy may remove the suit. In the fourth clause of the section covering the fourth classification above given the declaration is that any defendant, being a citizen of another state than that wherein suit is pending, may remove the same. So far as the express language of the clauses are concerned, in the first and third the right of removal is conferred on the defendant. In the second it is conferred on thedefe;ndant provided he is a non-resident of the state wherein suit is pending, which would include defendants who are citizens of other states) aliens, foreign subjects, and foreign states, and in the fourth the right of removal is conferred on the defendant provided he is a citizen of another state. Acoording to the argument of plaintiff the court· should hold that in cases coming under the third classification above given, and the third clause of the section, the right of removal cannot be invoked by a defend. ant, unless he is a non-resident of the state wherein the suit is pending. It cannot be held that such is the meaning of the clause unless the court interpolates the words, "being a non-resident." into the clause of the section in question. In the next case perhaps the contention would be that the court should interpolate the words "being a citizen of another state" in order to conform to the wording of the fourth clause. So, also, if the court should interpolate these words in the third clause. would not the like reasoning require the interpolation of the same words in the first clause? Certainly this would be disregarding the plain words of the statute, and adding thereto qualifications and restrictions not found in it, as it was passed by congress. Each of the four clauses in section 2 of the act deals with different classes of cases, and each clause defines by ita terms by whom the right of removal may be .exercised in the cases coming within the purview of each clause, and the court is not justified in adding to any of the several clauses restrictions upon the right of removal not found in the clause itself,on the ground that thereby the construction of' the clause willi be conformed to the 'trpe of congress. Such a line of argump.r.t proceeds upon the theory that the court, aside from the language of the act, knows what the true intent of congress was in adopting the act and the several clauses thereof, and must therefore add to the clauses any words necessary to conform the mel.tuing thereof to the assumed intent of congress, upon the assumption that they were accidentally omitted. In construing an act of the character and purpose of the one under consideration, the. court must hold the meaning thereoito be that which the act itself discloses. We construe the act and the seTemlclauses thereof to Rscertain the meaning of congress, and are not justified,in assuming that congress intendedsometbing not fairl)' de-
of the act itself, as applied to the subjectducible from the matter it is dealing with. It is clear beyond question that in section 2 of the act four general classes of removable cases are provided for, and each clause defines by whom such removal may be had of cases within the language of the clause. According to the plain intent and meaning of the language used, cases coming within the third clausethat is, suits involving a separable controversy wholly between citizens of different states-are removable by anyone or more of the defendants actually interested in such separable controversy. It is urged in argument that no good reason can be adduced why the right of removal is granted in this clause to a defendant, whether a resident or not of the state wherein smt is brought, but in the preceding clause is conftlrred only on non-resident defendants. It is a sufficient reason for the court to say, ita acripta eat. When .the language of an act is plain and clear the court is bound to assume that the legislative body that passed the act had good reason for the enactment, and simply because the court may not be able to discover or demonstrate the wisdom thereof, it is not justified in assuming that the legislature must have meant something other or different from that which appears upon the face of the statute. Therefore, as there are not found in the third clause of section 2 any words restricting the right of removal to non-resident defendants, and as the clause expressly declares that anyone or more of the defendants interested in the separable controversy between· citizens of different states may remove the suit, it must be held that such is the ·meaning of the act; or, in other words, that insuita otherwise coming within the definitions of this third clause, a removal may be had by any one or more of .the defendants interested in such separable controversy, irrespective of the question of the residence or citizenship of such defendant. To justify, however, a removal of a case under the third clause of the section in question, it must appear, among other things, that there is in the suit a controversy which is wholly between citizens of different states. As already stated, the suit now before the court iiiJ between citizens of different states, and involvesovei $2,000; so that it is a suit within the original cognizance of the federnl court, according to the provisions of the first section oUhe act. Is there involved therein a separable controversy, wholly between citizens of different states,to which controver"yErlward, Cook is defendant? The construction given to the similar language fOUfld in the act of 1875, in the various cases decided under the act, aid us materially in conatruingthe present acL stitute a separable controversy "the case trlust be one capable of tion into pal'ts,so that in one of the parts a controversy;wiH be presented with citizens ,of one or·.more states on one side and citizens of other states on the other, which can be fully determined without the presence of. the other parties to the suit as it has beenbegllu." Fraser v.Jenl'tison, 106 U. S. 191, 1 Sup. Ct. Rep. 171; Ayres v.Wis'wull, 112 U.S.187, 5 Sup. et. Rep. 90. It is also well settled, that iLa;p1aihtiff has a cause of tion in tort OF upon contract against several defendants;: which: is joint; or, being jointtand several,is d.eclurelion joint,li by the :plaintUi'" the