WALSH V. 101., C. & N. W. R. CO.
WALSR and others v. MEMPHIS, CARTHAGE & NOBTRWESTEBN R. Co. and others.
(Circuit Court, E. D. MiBBouri. March 28,1881.)
JOINDER OF PARTIES.
A corporation is a necessary party defendant to a bill to enforce a judgment against it by compelling contribution from its stockholders.
All the stockholders are also necessary parties in such a suit, if they apply to be heard. 3.
WHOLLY BETWEEN CITIZENS 01'
If A. and C. are citizens of the same state, and B., C., and D. are citizens of different states, a suit. in which A. and B. are plaintiffs and C. and D. defendants, and in which they are all necessary parties, is not one over which a United States court will take jurisdiction, on the ground that the controversy is "between citizens of different states. II To give a United States court jurisdiction on that ground the controversy must be Wholly between citizens of different states.
In Equity. Motion to Remand. This was a suit in equity to enforce certain judgments against the Memphis, Carthage & Northwestern Railroad Company, ,by compelling contribution-from holders of unpaid stock, and for other purposes. It was originally commenced in the circuit court of the city of St. Louis, in the state of Missouri, by George W. Walsh, Union Savings Association, a corporation, William Lee, Joseph Shippen, Edward Burges, James J.Marks, and Hiram Driggs, citizens of the state of Missouri, H. R. Beers, A. M. Jay, S. M. Sovern, S. Pitzer, J. F. Pitzer, and Alfred Palmer, citizens of the state of Kansas, agamst Joseph Seligman, James Seligman, Jesse Seligman, John A. Stewart, J. M. Brown, and James M. Hyde, citizens of the State of New York, Memphis, Carthage & Northwestern Railroad Company, St. Louis & San Francisco Railroad Company, A. A. Talmage, C. W. Rogers, W. J. Tower, Ezra Miller, and James Baker, citizens of Missouri, and R. W. Wright, a citizen of Kansas. The petition for removal was made by defendant Jesse Seligman alone, and set forth that he was a citizen of the state of New York; that ,
the controversy was wholly between citizens of different states; that the whole matter in controversy was as to the liability of the petitioner and his co-defendants, Joseph and James Seligman, and that the other defendants were only nominal . parties. . . Motion was made to remand upon the following grounds, viz.: (1) Because only one of the defendants, Jesse Seligman, petitioned for the removal, and becanse the suit was not one in which there could be a final determination of the controversy, as far as concerned him, without the presence of the other defendants; (2) because the controversy in the snit was partially between parties who are citizens of the state of Missouri, and not wholly between citizens of different states, between whom it could be fully determined j (3) because the controversy was not wholly as to the liability of said Jesse, James, and Joseph Seligman, but involved questions as to rights of property in which other defendants were interested. Joseph Shippen and John P. Ellis, for motion. Broadhead, Slayback d; Hauessler, for petitioning defendant. MCCRARY, C. J. The corporation defendant is a necessary party to a bill to enforce a judgment against it by compelling contribution from its stockholders. All the stockholders are likewise necessary parties, if they apply to be heard, to the end that each may be assessed his equitable share only. Hence it is that in this case the controversy is not wholly between citizens of different states, and cannot be finally determined as between them. Motion to remand sustained.
IN BE RECEIVERSHIP OF IOWA: &' MINN. CONST. CO.'
RECEIVERSHIP OF IowA.
(Circuit Oourt, D. Iowa. - - .
Oll' ImERVEIfi'ION WITHOUT PROCESS
,Before a suit is pending in a state court, for the purposes of the removal act, it must be a suit within the meaning' of the state law, and the mere filing of a petition of intervention, without the issuing or any kind, does not cODstitutlil a mit service of notice or process . the meaning of the law of Iowa. Sect-ion 2599, Code of Iowa,
Motion to Remand. , The Iowa & Minnesota Constmction Company is a corporation existing under the laws of Iowa. On the second day of 'February, 1875, one L. Schoonover filed his petition in the circuit' Court of Jones count)', Iowa, alleging that he had pre- \ viously,as trustee for Stacy & Walworth, obtained judgment 'against said corporation for $3,759.57, remains unpaid'f that the capital stock of said corporation was $100;'000, and had been subscribed by'certain persons who were named, and that said capital stock had not 'been paid into , a greater extent than 20 per cent. of the amount subscribed. ,It was further alleged that said corporation was insolvent, and that the petitioner could find no property or assets to satisfy the aforesaid judgment. Thereupon the petitioner prayed to be appointed receiver of said corporation, with authority to take possession of the books and papers thereof, and to levy a sufficient assessment upon the stockholders to liquidate the liabilities of the company. By an order of the judge, indorsed upon' the petition, the same was set down for hearing on the first day of the March term, 1875, of the circuit conrtof Jones county, upon notice to be giver. to each stockholder and others interested by publication in a newspaper, and by mailing a copy to the reputed post-office address of each stockholder. There is due proof of the publication and mailing of notices as required by the order of the judge, and on the second day of March, no one appearing for the stockholders, default was entered ag'tinst them, and a