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.
FEDERAl;' REPORTER, vol. 38.
Wilkimon, for defendant.
BREWER, J. This is a motion to' dismiss for want of The fltCts .are these: There are two plaintiffs. The allegation of the petition is that one plaintiff is a resident and citizen of the state of Arkansas, and the other a resident and. citizen of this state, and that the defendant is a resident and citizen of .the state of Texas. . It is insisted that the suit cannot be maintained here, because both plaintiffs are not residentsofthis district. Neither is the defendant a resident. The act of congress of 1887 provides that, where the "jurisdictionis founded only on the' fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." It is insisted that the use of the words "the plaintiff" implies that all the plaintiffs must be residents, and the mere fact that but one of two plaintiffs having a joint interest is a resident does not give this court jurisdiction. In the judiciary act of 188'9 the language in respect to jurisdiction and place of trial was: "Where an alien is l\ party, or the suit is between a citizen of a state where the suit is brought and a citizen of another state." And in the case of Strawbridge v. Curti&,3 Oranch, 267, the supreme court, ,by Mr. Justice MARSHALL, considered the question as to\Vhether an action could be maintained where alI of the plaintiffs were not citizens of the state in which the action was brqught. He expresses the opinion of the court in these words: ..' "The court understands these mean that each distinct inter· est should be represented by persons aU' of whom are' entitlpd to sue 01' may be sued in the federal courts.' That Is. that where the interest is joint, each of the persons concerned in that ,interest must be competent to sue, or liable l!ourts." to be In the late case of Iron Co. v. Stone, 121 U. S. eM. 7 Sup. Ct. Rep. 1010, that case was cited and approved. It is familiar to all that in some of the statutes respecting the jurisdiction of the federal courts, ahd providing for removals, the language is "any defendant," or "one having a separable interest." In other..cases it is "the plaintiff," or "the de· fendant," or "the party." The general, and I think I may say the uni. form, construction placed upon these last expressions is that they are collective, and include all who are plaintiffs or defendants. and that each must possess all the qualifications. Following this line of decision, it seems to us that all the plaintiflsinust reside in the district to enable them to sue, at least in a case in which all are jointly interested ina single callse ofaction. In this. case the action is on a contract made between two plaintiffs as partners and the defEmdant.· There il:l no separable controversy; and but.8 singieinterest. We think, therefore,that the motiqniswell taken, and must be sustained, case dismissed. It is so o r d e r e d . !
SOUTHEllN PAC. R. CO. V. UNITED STATES.
PAC. R. ,CO.
:Oalijornia. March 14, 1889.)
Under act Cong.March'S, 1887, § I, the court of claims has jurisdiction over" all claims founded upon the constitution of the United States, * * * or upon any contract, express or implied, with the government of the United States, 'in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity, or admiralty, if, the United States were suable." Section 2 gives_the circuit courts concurrent jU· risdiction when the amount involved exceeds $1,000 and does not exceed $10,000. Held, that the word "claims" embraced a claim to a patent to lands earned by a land·grant railroad company, and that the United States circuit court has jurisdiction of an action to determine the right to a patent under the grant. '
LANDS-GRANTB-cLAIM TO A P,ATENT.
In On demurrer to petition. J. D. &dding, for plaintiff. " J. O. Carey"U. S. Dist. Atty·. Befo!e SAVVYEIt , Circuit Judge. SAWYER,. J. This is a petition in equity presented to this court ul;lder the 'ac.t ,of congress of Marc4 3, 1887, entitled" An act tQprOvide, for the, bringing of suits against the government of the Unitiid States,." (24 St. 505,) setting,'up a claim to a tract oOand against the United, States,' and asking that its title to tb,e land be establisped in the plaIntiff', by the decree of this court. Thehmds described in the peare odd-numbered,sectionsof the public lands, lyingwit4ill the limits of the. lands, granted to .the. Southern' Pacific Railroad to aid, in the construction of a. railroad by the act, of congress arproved JUly 27 ,1866, An act granting lands to aid in the cpnstruction of a J:ai1road and telegraph line from states ofMissouri and to,t-he Pacific coa$t." 14 St. 292. The facts alleged in the petition, if true, show, thltt thelands were subject to the grant, and that the petitionl'!r has perfornled all the conditions prescribed in the act to entitle it to theland, and that no adverse interest had attached. Its right to a patent is shown, yet itis ,alleged, that though a patent has been often demaQded of the proper officers they have wrongfully neglected and refused, and they still do wrongfully neglect and refuse, to issue the patent ,as re<1;uired by law. The petitioner prays that it may be adjudged and decreed, that it has performed all the conditions required act of congress to entitle 'it to the land; that it is the owner of the land, and is a patent therefor; and that It may have such other and further relief, as the <lase may require, and as may be agreeable to.equity. The Ullited States demur to, the complaint, on the ground that the court has nojurisdiction wentertain a suit in equity of this character against the United States'-":"that the United States cannot be sued in such case. It js urged (1) tha,t the " claims" provided for ill this, act, are strictly legal clairns, and that, there is no in case.s in equity. (2). That