MoKAY and others.
(Circuit Oourt, E. D. ¥ichigan. November 9, 1880.) 3,1875, f 2, FIRST CLAuBE.-The first clause of the second section of the removal act of March 3, 1875, relates only to cases in which there is a single, indivisible controversy, and in which all the individulUs upon the moving side are necessary parties to such controversy. In such case all of the individuals upon such side must unite in the petition for removal. Jl SAME-SAME-SAME-AcT OF MARCH 3,1875, § 2, SECOND CLAuBE.-The second claUSe contemplates cases in which there are persons presence is not necessary to the determination of the main controversy; in which case either one or more of their co-parties may petition for removal, though all be citizens of the same state. S. SA:ME-SAME-SAME.-Hence, where A., a citizen of New York, sued B., C., D., E., and F., citizens of Michigan, and B. filed a petition for removal, alleging that the controversy was wholly between the plaintiff and B., 0., D., and E., and that F. was not a necessary party to the trial of such controversy, held, that the case was properly removed.
RE:MOVAL-PETITloN-PARTms-ACT Oll' MARCH
Motion to Remand. This was an action of replevin originally commenced in the state court by John L. Smith; a citizen of the state of New York, against John McKay, Eugene Robinson, Jesse H. ]j'arrell, Henry Rose, (impleaded as John Doe,) and J. P. Johnson, all citizens of the state of Michigan. The petition for removal was made by defendant McKay alone, and set forth, haddition to the other material allegations, that he was "a citizen of the state of Michigan; that Eugene Robinson, lesse H. Farrell, Henry Rose, (impleaded as John Doe,) were and are also citizens of the state of Michigan, and that the eontroversyin said suit is and the issues are wholly between the plaintiff, the petitioner, and the other defendants above named; that the said defendant J. P. Johnson is noi a necessary party to or in the trial of said controversy or issues, or any of them, and said Johnson also was and is a citizen of the state of Michigan." Motion was made to remand upon the ground that only one of the defendants petitioned for the removal. Beakes It Outcheon, for motion. Moore It Oanfield, for petitioning defendant. v.4,no.5-23
BROWN, D. 1. This suit was removed under the second section of the act of March 3, 1875. This section provides for the removal of suits between citizens of different states in two classes of cases: First, cases in which there shall be a controversy between citizens of different states, in which case "either party" may remove the suit into the proper circuit court; second, cases in which thete shall be a controvElrsy "between citizens of different states, which can be fully determined as between them," in which case "either one or more of the plaintiffs or defendants actually interested in 'such controversy may remove said suit to the circuit court of the United States." '-.' In construing the first clause of this, section it has been u;niformly held that the words "either corr prehendall the individuals upon one side of the conttoversy, and that all such individual parties must unite in the petition. The Removal Cases, 100 U. S. 457; C. &: St. L., etc., R. Co. v. Macomb, 9 Rep. 569; Ruckman v. Palisade Land Co. 1 Fed. Rep. 367; In re Fraser's Estate, 6 Rep. 357 i National Bank v. Dodge, 25 Int. Rev. Rec. 304. " Theaedecisions were a mere application to the act of 1875 of the rule which had obtained with reference to removal under previous ae.ts. Under the judiciary act of 178D it had been well established that all of the defendants must unite in' a petition for removal. Smith v. RinGS, 2 Sum. 338 ; Beardsley v. Terrey, 4: Wash. 286; Ward v. A1'1'edondo, 1 Paine, 410. The second clause of section 2, under which the removal of this case must be supported, if at all, was undoubtedly intended to apply to a different class of cases from those mentioned in the first clause; otherwise the first clause is unnecsary. The first clause, as well as the second, contemplates a 'contro'Versy wholly between citizens of different states, and which can be fully determined as between them. But it would not be consonant with sound principles of construction to say that both of these clauses meant the same thing, and gave the parties the option of petitioning jointly or severally. The second clause evidently contemplates not only a controversy
wholly between of different'states;' and which ;be fully determined as between thefu: but the existence of other plaintiffs or defendants who are not necessary to suoh controversy. We understand this to be conceded by both sides. 'l'he real question is whether such other plaintiffs or defendants' shall be citizens of different states from the other co-plaintiffs or co-defendants. The plaintiff in this case insists that, ina&' nlUch as all of the defendants are citizens of the state of Mich· igan, they must all unitain" the petition; and that it could only be upon the hypothesis that Johnson, whose presence is not necessary to this controversy, is a citizen of the same state with the plaintiff. That would entitle one or more oftha other defendants to remove the b'ase under the second clause. On the other hand, it is claimed that the :first clause only' applies where all of the defendants are necessary parties to the controversy, in which case it is admitted that all must join; but that, if there is a defendant who is not a necessary party to this controversy, the other defendants, or either of them, may petition for the removal, although such non-interested defendant may be a citizen of the same state with, them-this section, the selves. It is very probable legislature had in mind the existence of defendants whose would prevent a removal of by the other defendants; but' the language of the act bears no such corio struction. The fact that the more interested defendant shall be a citizen of the with the plaintiff, or of any other state than the other 'defendants, isnowheresu'ggested in" that clause, and any such construction would require us to interpolate words which are not there found. Such a restriction is found in the removal act of 1867, (Rev. St. § 639, subd. 2.) By this subdivision a removal is provided for when the suit is by a citizen of the state wherein such suit is brought against a citizen of the same state and a citizen of another state, in which case it may be removed, as against such citizen of another state, upon his petition; if, so far a8 it relates to him, the suit is brought for the purpose of
restraining or enjoining hiIIl1,or is suit in which there can be a',final determination of t,h.e,(}9ntroversy, so far as concerns without the presence,pfthe ,o,ther defendants as parties in the cause. Now, if the clau,se 9£ the sooond section of the act of March 3, 1875, w:a,s intended to cover cases of tpis kind, it would have natural and easy to repeat the of the act of Instead of that, however, we find that it is only necessary, that there shall be a controversy whQl1y petween citizens of different states, and which can be funy determined, as between them, without the presence of other plaintiffs or defendants who may have been joined with them as parties to the case. If it were otherwise, then the presence of the llnnecessary defendant, who might be unwilling to have the case removed, could in any case prevellt such removal. Upon a careful reading of this section I have concluded that the first clause relates only to cases in which there is a siqgle indivisible controversy, and in which all the individuals upon the IIloving side are necessary parties to such controversy. ,In such case aU of the individuals upon such side the petition. The second of the controversy must unite clause contemplates cases in which there shall be parties whose presence is not necessary to the determination of the main controversy, in which case either one or more of their co-parties may petition for removal, even though all be citizens of the same state. This is the c,ase set forth in the petition for removal in this cause, and the motion to remand must, therefore, be denied.
··IIB II. CONNECTICUT MUT. LIFE INS. CO.
BERB 11. CONNEO'J;'IOUT MUT. LIFE" 'INs. Co.
(Oircuit Court, w. D·.TennessC6.
NEw TRIAL-CHARGE OIl' THE COURT-WEIGHT OIl'
court may comment on the facts, but, ill doing so, should be careful nor to take from the not to assume to decide the matter of jury the right of weighing the evidence and: determining its force aud effect to prove the entire issue. Therefore, an instruction which, in seeking to explain the meaning of certain words or phrases, overlooks or ignores all the proof offered bytheotherside,and calls the attention of the jury only to the $trong features in the party's own favor, was propetlfrefused as a charge upon the weight of testhnony, and a new trial should not be granted for such refusal I. EvIDENOE-ESTOPPEL BY A SWORN SUTEMENT-RULE STATED.-It is misleading a jUry to call the rme of pubIrc policy which ooncludes a party from contradicting her oath deliberately ma4e, in the course of judicial proceedings, an estoppel. It is an established rule of evideJ;lce in TeJ;lnessee that such an oath, made with a wz7J'til intention to swear falsely, cannot be contradicted; but it does not operate as an 6stoppel unless the opposite party has acted upon it, or been prejudjced by it', in whicn case it cannot be contradicted at all, however innoceutly made. Where, however, it does not assume the character of a techni. cal estoppel, the jury may find the truth from the proof at large, if the party shows satisfactorily that the oath was not made with the in. tention to swear falsely.
Motion for New Trial. The plaintiff having sued the defendent company on a pol. icy of life insurance, and procured a verdict and judgment for $2,881, the defendant moved for a new trial. The defence was that at the time the policy issued the life assured, contrary to the warranty in the policy and application, was ad· dieted to the use of spirituous liquors; that after it issued he acquired the habit of intemperance so as to impair his health produce delirium tremens, and that he committed suicide by drowning. Prior to the death of her husband the plaintiff filed in the proper state court a petition for divorce, on the ground of habitual drunkenness, in which she stated that her husband had been for four years an drunkard and for two years subject to mania a potu. This petition, being sworn to, was introduced in evidence by the defendant company against the plaintiff, and, if true, conclusively established that he was a.