CITY
OF
LE
MABS
V.
IOWA FALLS
& S. C. Reo.
661
CITY OF LE MARS v. IOWAFAI..I,S & S. C. R. Co.d al., (three cases.) (Circuit Court, D. Iowa. May.1882.) REMOVAL OF CAUSES-SEPARABLE CONTROVERSy-CONDEMNATION PROCEEDINGS.
A proceeding by a city to condomn certain lands, in which a citizen of the same state with plaintiJr owns the fee, while a citizen of a diJrerent state holds a perpetuallease, is not a separable controversy when the main question is as to the right to condemn; and the non.resident defendant cannot' remove his part of the contro· velsy from the state to a federal court.
At Law. Proceeding to condemn lands. On motion to remlln9. the <lause to the state court. Barr:roft &- Gatch and G. W. Ayff1', for plaintiff. John F. Duncombe, for Illinois R. Co. McCRAIW, J. This proceeding was instituted by: the city ofr,Le Mars in the state courtforthepurpose of condemning certaill real estate within the corporate limits of the city for street purposes. ,The ,defendant the Iowa Falls & Sioux City Railroad Company is the ,owner of the fee, of said real estate, and is, with the plaintiff, a citizen of Iowa. The defendant the Illinois Central Railroad Company is the owner of aperpetual lease upon said real estate, and, being a citizen of Illinois.'hasd·e- , moved"the case to this court, claiming that there is a controversy wholly between it and the plaintiff, which can be fully determined as between them. The record shows that the principal contrm'ersyis as to the right of the city to condemn nnd take this particular real, estate fot, street purposes. A secondary controversy will arise, if the right of condemnation is upheld, as to the amount of damages to be awarded;, It is plain that the city has a right to proceed to .condemn land for street purposes against all who have an interest in it, and especially against the owner of the fee. If it were conceded that two separate suits, could be maintained, the one the' owner of the fee, and the other against the lessee, it will scarcely be contended that the city could ,be obliged to divide its action in that way. The la w looks with great disfavor upon any rule that will increase litigation by multiplying suits. It is now settled that so much of the act of.1866 (Rev. St. §639) as expressly authorizes the splitting of a case, and the removal of a part of it to a federal <:ourt for trial, leaving another part in the state court, is repealed by the subsequent act of March, 1875. If any part of a suit is removed, the whole must be removed. The question remains to be determined, in what class of cases, if in any, can a cause be removed, where some of the patties litigant on opposite sides are citizens of the same state, and others are citizens of different states? The rules by which we are to be governed, so far as they have been settled by the supreme court of the States, may be stated as follows: 1. If the parties to the suit can be placed on opposite. sides of the real controversy, disregarding the mere form of the pleadings, so that all on one side are found to be citizens of different states from all on the other,
6B:Z'
FEDERAU.t REPORTER,
vol. 48.
the cause may be removed under the first clause of the second section of the 'aotlJofMarch 3, , RelnOVal Oase8, 100 U. S. 457.; T 2. Where a suit embraces two distinct controversies, one of which is
between citizens of differenfstates, while the {ltheris between citizens which can be of the same state, if the former is a sel)arable wUhout C)f Jhe,partie,s to then fully either ofthEl'parties to the former may ,uader the seoond clause of the section, rem,ove the 'Yhble case. Barney v. Latham, 103 U. S. 205., ' 3. But congress has not provided for the removal from a state court ofa suitin'W'F!i'eh there is a-controversy'n<lt wholly between citizens of different states, and to the full or final d(ltermination of which one of the indispensable parties, plaihtiffs or defendants, on the side seeking the removal, is a citizen of thesttme state with one or more of 'the parties against whom the removal is asked. Blal:e v. McKim, 103 U. S. 336. 4. To authoi'ize a r.emoval1nnder the first clause of the section above partiesQl1 one side of the controversy must be citizens of differentstateldrom all the parties on the other'; and, to authorize a removal under the second clause of that sootion, there must exist in the suH a separate'lIbdr distinct cause of action, in respect to which all the ,necessary- parties-on one side are citizens of different states from those on another. Hrgde v. Ruble, 104 U. S.407, (January, 1882.) to detettnine ineaehcllse whether the controversy arising betweeni citizens ofdifi'erent states is a distinct and separate cause ruleJfdr determining. this question has been laid of down bythe:supreme court; and it would, perhaps, be difficult to formulate one that W10uld be applicable to allca:ees. In the present case the plaintiff' brought suit aKainstlwo defendants, one of which is a citizen of the same,Sta1ewithplaintiff. The cause of action is against both; the'proof must be preciselt the same as to both, &ndthe judgment, in so' 'far as it-establishes the right of condemnation, must be against both. Eachmighfha\ie a.separate';&laim for damages; but that is a subordi.. nate controversy', andone'which cannot be considered 'until the main question is, ,determined; Until otherwisednstructedbythe supreme court, this courtr:will hold that in such: a ease the pla.intiff cannot be obliged to litigate' withhoth or either of the defendants' in a federal court. The Cl1tlge of action against one of the defendants is not separate and distinet frOID thatagainet the other. The controversy,is sing;le. and notdivisiblej within the xueal)ing of the rule laid down by 'the supreme court. If:apdrtydbrings 'a.;suit in a st/Jwioourt against two' or more defe»dants, ,dauseof: action of suoh, a character' that' he has a right to:proceed to,judgmtlnt RS'Riustall, andiwhere the sarne 'proof applies to all; it is not/l a!;divisibre'oll separable:contrtwersy.It follows ,that the' motiOn be sustained, atld, it is 80 ordered. This, ruJi ng applies to two other cases betweanthe;s&roe partiell,dn which similar ' '
KELLEY 11. CENTRAL RAILROAD OF IOWA..
663
KELLEY 11.' CENTRA.:L'·RAIDlIDAD OF' (Cirmtit Court.
IowA..·
D. JOOJa, C. D.' October,l118S.) ,
l.
DEATH BY WRONGFUL ACT-l\!lEASUnE OF DAMAGES·
.In an action forwrongftil death under the Iowa statute the recovery 1s to be measured by the amount which would prdbably have, been saved to decedent's estate if he had taking. iDto QOnsideratloD occupation, age, health, habits as to industry,'sobriety, aDd' economy, 'the lJ,mount his property, and the probablo duration of his life. I ' .'" ,
SAME-PAIN AND SUlI'I!'ERINll.
. No damages can be given for tile pain and suffering of the deceased, nor the wounded feelings or grief of his relatives. ! . ,
At ::Law. Action by Mary Kelley, administratrix of the estate of 'Nicholas Kelley, for damagesiJicausing the death of her intestate. The main question determined in this was as to the meas,ureM <lamages,and the report was limited to that part of the judge's charge to the jury which bears upon this subject. McClain's Code Iowa,§ 2525, provides that" aU causes of action shall survivei ind may be brought nOtwithstanding the death of the personentitledodiable to the same." 2526 provides, among other things, that "when a wrongful act :produceS death, the damages shall be disposed of as personal property belonging to the estate of the deoeased,6xcept that, if ,the deceased leaves:a,.husl>and, wife.:, child,:or parent, it shall, not be liable for the payment of debts. It a. H. Gutch, for plaintiff. Blair k Daly, for defendant. MCCRARY, J., (orally charging jury.) If you find for the plaintifiyon will assess her daml1gcs, at such just" and reasortli.ble sum as will compensate the estate of the deceased for the ]oss occasioned by his death. In determining what this amount shall be, 'in case you come to the question of damages, you will consider the circumstances of the hll.bits as to llldustry all<t aeon:. -omr; the amount of his property, ifany, and the probable duration of apd these determine what Msannual income during life would probably have been which would have been .saved to his estate, and,. ,not expended, llu(1. a gross sum have produced a like income at illterestwill be a proper sum to be .allowed as damages. I do not say that you are obliged to find the amount by this process. You may exercise your discretion as the mode of arriving at the value of the life of the deceased to ,his estate, b'Utthat value, when ascertained and fixed by you, niust be the sum of your verdict. This mode is suggested as a convenient one, which you can :adopt if you ohoose. ':, In a of this 0haracter you are not to take into account the pain of the'deeeased, nor thewoundedfeeliJigs or grief of his J!elatives, in fixing the damages. What you are:to ascertain and by ,your verdict decide; ifyou CODle to the question, is what,accordiq.g:to