WHITMAN V. HUBBELL.
81
WHITMAN 11. HUBBELL,
Treasurer, etc.
(Oircuit CQurt, 8. D. New York'. February 22,1887.)
1.
REMOVAL OJ!' CAUSES-AMOUNT IN DISPUTE.
In a suit to restrain the maintenance by defendant of an awning over a part of a street adjoining the plaintiff's premises, the matter in dispute is the value of the right to maintain the awning, and not the amount of damage done by it to plaintiff. The value of such right held to be more $500, within the meaning of Act of March 8, 1875, (1M St. U. S. 470, § 2,) relatmg to removal of causes from state courts to United States courts. The representative character of a party does not affect his right of removal of the cause from a state court to the United States circuit court. It depends upon his citizenship alone, without regard to that of those whom. he represents, or of those who are interested in the controversy, but are not parties to the record. ALONE.....CODECIVIL PRoc.N. Y. 1919, 1923. Under sections 1919, 1928, Code alvil Proc. N. Y., suit may be brought by SUED
2.
SAME-CITIZENSIDP-DEFENDANT SUED IN REPRESENTATIVE CAPACITY.
8.
PARTms--I'REsIDENT OR TREASURER OF JOINT-STOCK AsSOCIATION -
or 'president or treasurer of a joint-stock aSSOCiation, instead of joining all the Individual members.
In Equity. Ira D. Warren, for plaintiff. (1larence A. Seward, for defendant. ,'WHEEtJm, J.The plaintiff is a citizen of New York, and ant of Connecticut. The Adams Express Company is a joint-stock ciation of New York. This suit was brought in the state court to restrain the maintenance of an awning over a part of Great Jones street adjoining the plaintiff's premises. The defendant removed the cause into this court. The plaintiff moved to have it remanded because as he says the matter in dispute does not exceed the 130m or value of $500, and there is not a controversy in it between citizens of different states. Act of March 3, 1875, (18 St. 470, § 2.) The matter in dispute is the value of the right to maintain the awning, not the amount of damage done by it to the plaintiff. Railroad Co. v. Ward, 2 Black, 485. This appears to be more than $500. The Adams Express Company is a part'nership, and not a corporation. It has no existence apart from the members, and does not appear to be of itself a citizen of any place. The law of the state permits suit to be brought by or against the president or treasurer of such an association, instead of joining all the individual members. Code Civil Proc. §§ 1919, 1923. When an action is so brought, no action can be brought against the members except on failure to' obtain satisfaction of the jndgment. Section 1921. The officer is the only defendant on the record, although he represents the association, and the execution against him, if obtained, is to be satisfied outoi the assets of the association. Section1921. The controversy is therefore between citizens of different states in this case, althoughotherB who mayor may not be citizens of the same state with the plaintiff are '\T.30F.no.2-6
82
FEDERAL REPORTER.
interested in the controversy. The representative character of a party does not affect his right of removal. It depends upon his citizenship alone, without regard to that of those whom he represents, or of those who are interested in the controversy, but are not parties to the record. Mar8haU v. Railroad 00., 16 How. 314; Knapp v. Railroad (h., 20 Wall.
117.
PALMER v. McCORMICK and others. (Clz'rlJuit Oourt. No IJ. I01Ca, 1.
w: IJ.March
1, 1887.)
NON-REI!IIDENTS-SERVICE ON; BY PuBLICATION-NEWSPAPER WITH "PATENT mSIDE"-WHERE "PRINTED."
In case of a local paper made up partly of a "patent inside," printed in an· other state, the paper IS "printed' in the county where it is issued, within the meaning of a statute regulating publication of notice in actions nonresidents.
SAME,-DEFENDANT COMING INTO STATE-EFFECT.
The to have service by publication on a non-resident defendant is not defeated by the fact that such defendant is in the habit of coming into the state as often as once in two weeks. ' The affidavit for publication may, under the Iowa statute, be made by an attorney, and is not insufficient for not containing the,words, "The State of I01Ca. - - OountY-88.· " if it clearly appears from it in what court, state. and county the case is pending. ' The fact, that a mortgagor's failure to redeem from the mortgage, and.from the foreclosure thereof, was caused by his misfortunes. resultin&, from, the ..grasshopper 'plague, " held not ground for relief in equity, as agalDst'8 .,alid legal title under the foreclosure.
SAME-AFFIDAVIT-FoRM.
4.
MORTGAG.Bl--FoRECLOSURE-RELIEll' INEQUITy-MISFORTUNES OF MORTGAGOR.
In Equity. Suit to redeem from mortgage, and to, set aside decree of foreclosure.' to amended bill. J., W:, for complainant. Baily, Osbprne &: Peters, for defendants., SHIRAS, J. This cause has already been before the court upon a demurrer to thebillj the main question presented thereby being that of the jurisdiction of the state court to render a decree foreclosing a mortgage on realty within the jurisdiction of the court, the mortgagor being a nonresident of the state. and the only notice given of the pendency of the suit being by a publication made according to the provisions of the shlte statute. It was held that the court had jurisdiction to render such a decree, the proceeding being practically in rem. See opinion 28 Fed. Rep. 541. In support of the conclusion therein reached, see case of I!'reeman v. Alderson, 7 Sup.· Ct. Rep. 165. Complainant has now amended his bill, setting up other facts which he claims defeat the de.. {lree of foreclosure, and the sale made in pursuance thereof; and to the bill as amended defendants again demur, and counsel have very fully the questions thus presented.