Republic Fire Insurance v. Keogh

Barrett, J.:

We do not think that a ease was made for the removal of these actions. It does not fall within section 2 of chapter 139 of the act of congress passed March 3, 1815, for the reason that the essential controversy is between the plaintiffs and the defendants, and the latter are not all citizens of different States from the former. The actions are in the nature of interpleaders, and the main question to be determined is, whether the suits are rightly brought. That is the primary issue upon the pleadings. The rights of the co-defendants, as between each other, may never become a subject of adjudication in these actions. There is, in fact, no present controversy in the actions as between these co-defendants. The only existing issue is the direct one, between the plaintiffs and defendants, namely, whether the plaintiffs are entitled to relief by way of interpleader ?

The court may ultimately dismiss the complaints. It may find that the facts averred are not proved, or it may hold, as matter of law upon the conceded or established facts, that a case for an inter-pleader has not been made out. If, however, the right to an inter-pleader be sustained, the court may then direct an issue as between these co-defendants. Until such time has arrived, there cannot be said to be any controversy except as to the plaintiff’s right. But even as between the co-defendants it is apparent upon the papers, that whatever controversy may ultimately arise will be mainly between citizens of the same State.

There may possibly be a single controversy between citizens of different States; but such controversy will be incidental.

It is not within the spirit of the act of removal to permit such actions as these, with their numerous parties and conflicting interests, to be earned into the Federal forum, merely because a single incidental issue may arise between two of the defendants who are citizens of different States. As it appeared upon the face of the papers that the causes were not within the removal act, the court had no power to make the order. For that reason such order is appealable, and the appellants were not bound to apply to the Circuit Court of the United States to remand the causes.

The orders should be reversed, with ten dollars costs and disbursements in each case, and the motions denied.

Davis, P. J., and Brady, J., concurred.

So ordered.