prevent the.defendants from obtaining a fair and impartial trial in some convenient county of the state to which the court, under.the state law, might send the cause. The. influence of the plaintiff and of his associates upon the Chicago board of trade could hardly, in the nature of things, be felt beyond the immediate locality where the board of trade does business and the city of Chicago. I can hardly deem it possible that public opinion could have been so far prejudiced against these defendants by anything which might have occurred in the progress of this litigation in the state courts as to have reached the adjacent counties, Of, in the language of the law, "the convenient" counties of the state to which the court might send this cause for trial, on being satisfied that the defendants cannot obtain a fair trial in Cook county. I do not, therefore, think that the existence of prejudice Of local influence against the defendants is shown to exist, as a matter of fact, to such an extent as to justify this court in taking cognizance of the case. The motion for a certiorari to remove the cause from the state court to this court is thereiore overruled.
(Oircuit Oourt. :E. D. WiBconlin. March 19. 1889.)
Separate answers tendel'ing separate. issues intel'posed by defendants. jointly do not create separable. controversies, within the meaning of the reo moval acts. '. 8.S:AME..-.NON,SERVICE OF JOINT DEFENDANT. Where. in a suit against a resident liVing within the district and a non-resi· dent. the ca.use of action. declared upon is. joint. the non·service of prOCeSS .upon' the resident does not challge the character of the suit so as to entitle the non"resident to have it removed as for a separable controversy.
Noris thejul'isdiction of the federal court in SUCh case aided by U. S.§ 787·. authorizing the court to entertain jUl'isdiction as to parti.es pl'Op· eTly before it, notwithstanding the absence of necessary parties not inhabitants of. nor found within. the district wher:esuit is brought. and providing that noD·joinder of such parties shall not constitute matter of abatement or objection to the suit.
At Law. On motion to remand. Action by M. B. Patchin against W.W. Hunter and John H. Parks, originally-brought in the state court, and by defendant Parks removed.'to tbiscourt. Geb. P · .Miller; for plaintiff. H. Webster, for defendant ParkS. ·:Before GRESHAM and J J. JENKINS,J; The plaintiff, a citizen of Wisconsin, brought sqit in the circuit cOurt Wis., against the defendant Ilunter,a citizen of, and· resident· within' the' Eastern district· of Wisconsin, 'and
the defendant Parks, a citizen of the state of Michigan, to reCover the .amount of a promissory note for $3,200, alleged to have been made by the defendants as copartners under the firm name of Parks & Hunter. The record discloses that process was 8erved on Hunter March 29, 1886, and on Parks October 12, 1886; the latter defendant duly pleading fo the denying the alleged copartnership and the execution by him of the note declared upon. The defendant Hunter made default. On the 4th of January, 1887, the defendant Parks presented his petition in the stlltte court for the removal of the suit to this court, alleging a separable controversy between himself and the plaintiff. On January 20, 1887, the state court, by order, removed the suit into this court, where the record was docketed on the day of April, 1887. The plaintiff now moves to remand the cause for want of jurisdiction in this court. At the hearing there was conflict touching the fact of service of process. upon. the defendant Hunter; he denying service. J urisdictionhere does not hinge upon the fact of such service. This decision proceeds upon the postulate that, as claimed by the defendant, no process was served upon Hunter, the resident defendant. The cause of action is joint. In such case there can be no separable controversy. Separate answers tendering 8eparate issues interposed by not crea,e ,. separable controversies. Railroad' defendants sued Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735; Railroad Co. v. Wilson, 114 U. S. 60, 5 Sup. Ct. Rep. 738; Starin v. New York, 115 U. S. 248, 6 Sup. Ct. Rep. 28. At common law there could be no recovery against joint debtors until they were all, .if living, summoned; or those notpos:sible to be summoned wore outlawed. To facilitate proceedings against joint debtors, the statute was enacted which provides that when process is served upon one or more, but not all, of the defendants prosecuted jointly, the plaintiff may proceed against those served, and, upon recovery, may enter judgment in forD;l against all jointly indebted, enforceable against the joint property of all,aild the separate property of the defendant served. Rev. St. Wis. § 2884. In such ,case provision is also made whereby the defendants not served may be subsequently summoned, and bound by the judgment. Rev. St. Wis. §§ 2795-2798. In iPutnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. Rep. 746, it was ruled that an action against three defendants sued jointly, one ofwhom was a citizen of the same state with the plaintiff, could not be removed into the federal courts under the second clause of the !lecond sectioJl of the act of had. answered, March 3, 1875. There the two .'denyingjoint liability; the resident. ma.king default. court, however, declared that a separate controversy is not ,introducep. into the case by separate defenses to the same cause of action; the default of the resident defendant was the'sQit beipg still on joint causes of action, and the plaint,iffJVas entitled, if to. any.relief, to a joint judgment against all the defendants. In Brook8 v. Clark, 119 U. o,S. 502, 7 Ct. Rep. 301, a citizen of su,eda citizen. of "Penn:;:ylvania and a. .citizenof New York as joint cou:r;t formerstate, serving process
SMITH V. LYON.
Upon default judgment was entered against both defendants, under the practice in that state. Afterwards the non-resident defendant voluntarily appeared, pleaded to the action, and procured a removal of the cause to the proper federal court. Upon a motion to remand it was urged that there was no longer any controversy between the plaintiff and the resident defendant, the judgment concluding their contention. The court ruled against the position taken, and held the federal court to be without jurisdiction to entertain the suit. So here the non-service of process upon Hunter cannot change the character of the suit. The cause of action declared upon is joint. If removable as for a separable controversy, the whole suit is here. BarMy v. Latham, 103 U. S. 205. 'l'he judg-: ment must be a joint judgment. There exists no more of a separable controversy because of non-service than in the case oia default or judgment following service. To constitute a separable controversy within the removal clause of the act of 1875 there must exist in the suit a separate and distinct cause of action on which a separate and distinct suit might properly have been brought, all the parties on one side of such separate controversy being citizens of different states from those on the other. Hyde v. Ruble, 104 U. S. 407; Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. Rep. 171. Nor is jurisdiction aided by the provisions of Rev. St. 737, authorizing the court to entertain jurisdiction as to pll:rtiel!! properly before the court notwithstanding the absence of necessary partieR not inhabitants of, nor found within the district where suit is broiJght, and providing that non-joinder of such parties shall not constitute matter of abatement or objection to the suit. The statute is not applicable to the facts here. The defendant Hunter is confessedly an in., habitant of, and can he found within the district. He is therefore an indispensable party, and. being a citizen of the same state with the plaintiff, jurisdiction is defeated. Ober v. GaUagher, 93U. S. 199. The .cause will be remanqed.
GRESHAM, J., concurs.
et ale 'V.
'(Oircuit Oourt, E. D.
Under act Congo 1887, providing that where, the jurisdiction of the federal courts is founded only upon the fact that the fl,ctionis between citizens Elf ferent suit shall be brought only In of the resipenceof ellherthe plaintiff or defenda:Qt, a suit brought py two persons on aCO!ltract, entered 'into by them as pal'tnerscannotbe maintained in a district of Which the defendant and one of the plaintiffs are non-residents. ,-' .. , '
At Law. Jefferson Chandler, R. H. Landale, and S. H. West, for plaintiffs.