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
STANBROUGH ". COOK.
defendants cannot, by tRndering separate issues in their answers, create separable controversies, so as to authorize a removal of the cause. Railroad Co. v. Ide, 114 U. S. 52,5 Sup. Ct. Rep. 735; Pirie v. Tvedt, 115 U. S. 41,5 Sup. Ct. Rep. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. Rep. 730; Insurance C-o. v. Huntington, 117 U. S. 280, 6 Sup. Ct. Rep. 733; Brooks v. Clark, 119 U. S. 502, 7 Sup. Ct. Rep. 301. Under the doctrine of these cases, to sustain the right of removal in the present instance, it must appear from the record that upon the allegations of plaintiff's petition there arises' in the cause a controversy capable of separation from the other issues or questions presented. by the petition, which, when separated, would be between citizens of different states, and in which Edward Cook would be interested as a defendant. To the petition are made defendants Susan Daniels, Lucy Daniels, HenThe petition does derson, Hurd, Daniels & Kiesel. and Edward not aver that all the defendants claim title to the realty jointly, or under one common source of title; nor does it aver that they jointly converted to their own use the crops growing on the land, or that theyjointly it;tjured the buildings for which the damages are prayed. The petition has been very shrewdly drawn under the statute of Iowa for the purpose of settling all adverse claims of title on the parlof any and all the deto all of them to set up, each forhil1lself, fendants. It is a any and aU titles they may have, and the purpose of the suit is to in the one proceeding all adverse claims asserted by any and all of petition, as drawn, Susan Daniels mightset up a title in fee-simple based upon the swamp-land, act; titleJ.I! fee-simple based upon a grant to a railroad; Henderson, Hurd, Daniels & Kiesel a title based upon a valid sale for delinquent taxes; and Edward Cook might set up a fee-simple title derived from an entry upon land-warrants, or he might claim to be a tenant holding under anyone of his co-defendants, or under some other person not made a party to the suit. The petition is not framed for the purpose of narrowing down the issues triable thereon to one title or source of title, but, on the contrary, brings all the named parties into the suit as defendants, for the purpose of adjudicating every adverse interest or claim to the realty, no matter how diverse or antagonh::tic to each other they maybe. The decisions, therefore, defining the rule applicable to suits based upon Joint or joint and several causes of action, do not touch a case of the peculiar character now before the court, for the reason that the petition in this: cause does not seek to declare against all the defendants jointly. Ttlat this Was not the intent of the plaintiff is not only manifest from tile allegations and form of prayer found in the original petition, but in an amendment to the petition filed in the state court,before tlle submission of the petition for removal to .that court, itis averred that Hurd, Daniels & Kiesel executed to Edward Cook a written lease of the premises in their own name and right, and ,not as either Susan or Lucy Daniels, and that Edward Cook holds possession of the under this lease. When:the petition for r,emoval j fore,was broright to the._,_attention of the tl,lerecv.rd Sllo.w'eP.. .. · .,... . .n.
REPORTEn., vol. 38.
that the plaintiff purposed to litigate the rights of Edward Cook as a tenant under; a written lease executed by Henderson, Hurd, Daniels & Kiesel in ,their own right, and, according to the prayer of the original petitiOn, proposed to ask judgment against said firm and Edward Cook, decfuringsuch lease and the title it was based on to be invalid, and also asking jUdgment against said firm and Cook for the $1,000 damages claimed for the taking away the crops and damaging the building. The plaintiff also expressly negatived in his amendment to the petition the idea that Susan or Lucy Daniels were interested in the particular controversy arising between plaintiff and the defendant Cook and his lessors under the written lease described in the amendment. Upon the face, therefore, of'plaintiff's own pleadings he haS made it clear that there is involved in this suit a controversy between himself and Cook and the said firm, in which the other defendants lire not interested, and this separable controversy is between citizens of different states, and Cook is a party defendant thereto. The petition for removal avers that the said Susan and Lucy Daniels will each by answer claim to be the owners of the property in fee-simple. so that it is thus made to appear that the .suit involVes more than one controversy, and that, when separated, there is found therein a controversy between the plaintiff and Henderson, Hurd, Daniels & Kiesel and Edward Cook, they being citizens of different states. This being so, then Edward Cook, as one of the defendants to this separate controversy, had the right to remove the cause to this court under the third clause of section 2 of the act of 1888. The motion to remand must be, therefore, overruled,and it is so ordered.
WALKER tI. O'NEILL.
(Oircuit Gourt, D. Kentucky. April 2,1889.) L
REMOVAL 011'. CAUSES-RESIDENT ALIEN-PETITION.
Under act March S, 1887, S 2'rroviding for the removal of a cause by 8 defendant being anon-resident 0 . the state, a defendant who Is an alien Is not entitled to a removal of a cause from a Court of the state of which he is a resident. and a cause removed by an alien defendant will be remanded where it Is not averred that he is a non-resident of the state:
SAME-JURIsDICTION TO DETERMINE 'RIGHT TO REMOVA.L.'
The federal COurt to which it is sought to remove a CRuse may pass upon the right to a removal. The decision of the state court thereon is not con· elusive.
On Motion to Remand. Walker G. O'Neill. Action by John l'eland and Dodd &:Grubbs,for plaintiff· .Brown, Humphrey &: Davie, for defendant.
BARR,J. Theplil.intifl' SUed thE/defendant, who is; an alien, in the' Christian circuit court, and he filed his petition for a removal to this