Citation Numbers: 6 R.I. 428
Judges: AMES, C.J.
Filed Date: 3/6/1860
Status: Precedential
Modified Date: 1/13/2023
It is true, as suggested by the counsel for the petitioner, that this court has, under the constitution and laws of the United States, no discretion to forbid one entitled to the jurisdiction of the courts of the United States to remove his cause thither. Our discretion, which is judicial merely, is confined to the ascertainment and declaration of his right to the jurisdiction; that being ascertained, the right to remove follows as a matter of course.
Two objections are made by the plaintiffs to this bill to the *Page 431 change of jurisdiction invoked by the defendants, Charles T. James and wife; 1st, that Fiske, a party plaintiff, is a citizen of Pennsylvania; and, 2d, that Jenckes, a party defendant, is a citizen of Rhode Island; whereas, by the well-established rule in construction of the 12th section of the Judiciary Act of the United States, all the plaintiffs must, in order to removal, be citizens of the state in whose court the suit is brought, and all the defendants be aliens, or citizens of some other state or states of the United States. Strawbridge v. Curtis, 3 Cranch, 267; Ward v. Arredondo, 1 Paine, 410; Goodyear v. Day, 1 Blatchf. 565. To the first objection it is replied, that Fiske was not a necessary party plaintiff to the bill, as the bill itself shows; since the court might and would have given the same relief if the bill had been brought by Gardner alone, without joining his copartners, for whom he purchased at the sheriff's sale in trust. This reply, it will be perceived, assumes, that if this bill might have been sustained in the courts of the United States by Gardner alone, without his cestuis, it is now to be treated, for the purpose of removal, precisely as if he had not joined them as co-plaintiffs. We see no just ground for this assumption. Undoubtedly, mere formal parties, or unnecessary parties, such as are entitled to no decree as plaintiffs, or against whom no decree can be rendered, as defendants, are not to be treated as parties, though joined, upon the question of removal. If they were, the jurisdiction of the courts of the United States might be evaded in numerous cases proper to it. But this is as far as any case which we have seen has gone, and as far as we think any case ought to go. "The criterion," says Mr. Justice Thompson, "as decided in Wormley v. Wormely, 8 Wheat. 451, by which it is determined whether a party is nominal or not, is whether a decree is sought against him." Ward v.Arredondo, 1 Paine, 412, 413, and see Livermore others v.Jenckes others, 11 Howard (N.Y.) Pract. Rep. 479. Beside indispensable parties to bills, there is a class of parties, who, although their interests are so separable from those of others that even if they were not before the court the court might do complete justice to those who were before it, are, nevertheless, entitled to join in suits commenced to assert the joint interest, and to have their *Page 432 rights adjudicated in them. With regard to such parties, the courts of the United States, before the statute of February 28, 1839, allowed plaintiffs to dispense with them for the purpose of assuming jurisdiction, and especially where they could not be served as defendants; and the statute, so far as equity cases are concerned, seems to be nothing more than a legislative affirmance of previous decisions upon this subject. Shields et al. v.Barrows, 17 How. 130, 139-142, and cases cited. But though such parties need not be joined, yet where entitled or subject to a decree, they certainly may properly be joined; and if they are, no court is entitled, against their will, to dismiss them, or to treat them, for the purposes of jurisdiction, as if they were not parties to the suit. They have a right to a decree, and have sought it in the proper manner, and in the proper place, where they can have it; and it would be cold justice to turn them over to a tribunal which cannot give it to them, — whose very jurisdiction must depend upon dismissing them from a bill, under which, according to the principles of equity, they are entitled to relief as parties.
Precisely such a party as this, appears to us to be the plaintiff, Fiske. He was a member of the firm of Thurston, Gardner Co., the plaintiffs in the execution levied upon the land in question, and therefore interested in the result of that levy. It was quite proper that when Gardner, another member of the firm, bid in the land levied on, he should do so for the common interest, and hold the purchase for the common benefit. This the bill asserts that he did; and Fiske, as well as the other members of the firm, is therefore properly joined in the suit, as a plaintiff, to assert their joint rights acquired by the levy, and to participate in the decree here sought. It is not for this court, or for any court, to treat a party who properly pursues his remedy, and who is, so far as shown, entitled to a decree, as if he were no party; or to deny to him his lawful remedy where he has chosen to have it, and where alone, in the accustomed manner, he can have it.
As the presence of the plaintiff, Fiske, as a party to this bill, is fatal to this petition, it is unnecessary to consider the other objection to removal, in the joinder of the defendant, Jenckes. The petition must be dismissed, with costs. *Page 433