Citation Numbers: 14 F. 181
Judges: Hammond
Filed Date: 11/11/1882
Status: Precedential
Modified Date: 9/9/2022
This is a second motion to remand this case, upon a ground not urged on the hearing of the first motion, which was overruled. Deford v. Mehaffy, 13 Fed. Rep. 481. It is now said that the defendants who were made parties upon the allegation that they were indebted to the principal defendant are citizens of this state, as are the plaintiffs, and that this defeats our jurisdiction. The case of Hyde v. Ruble, 194 U. S. 407, is relied upon. I think it has no application. While the resident defendants to this bill in equity do not occupy precisely the attitude of mere garnishees at law, in the sense that the case can be said to be at issue before they
Since the foregoing judgment, Mr. Justice Harlan’s opinion in the case of Bacon v. Rives, not yet reported,* (to appear in 105 U. S.,) has been received, It fully sustains the above ruling. Hammond, D. J.
Hominal parties are not to be treated as parties, although made parties, to the suit, (Livingston v. Ribbons, 4 Johns. Ch. 94; James v. Thurston, 6 R. I. 428;) so, if a citizen of the state where suit is brought is not a necessary party, and his presence is not essential, the non-resident defendant may remove, although the former does not unite in the petition, (Hatch v. Chicago, R. I. & P. R. Co. 6 Blatchf. 105; Ex parte Girard, 3 Wall. Jr. 263; Hadley v. Dunlap, 10 Ohio St. 1; Livingston v. Gibbons, 4 Johns. Ch. 94;) ana if all the defendants join but one, and that one is an unnecessary party,' the cause may be removed, (Cooke v. Seligman, 7 Fed. Rep. 263.) The right to a removal is not affected by the fact that a defendant, a citizen of the same state, is a proper but not an indispensable party to a separable controversy. Barney v. Latham, 103 U. S. 205. So, where a landlord, the real owner, assumes the defense, he makes himself a party, and, being the real defendant, may remove the cause if he has the requisite citizenship, (Greene v. Klinger, 10 Fed. Rep. 689; Wilber v. Nat. Bank, 12 Chi. Leg. N. 75;) and so where a tenant disclaims title and has the landlord substituted as defendant, (State v. Lewis, 12 Fed. Rep. 1, and note, p. 7; see Allin v. Robinson, 1 Dill. 119; Relfe v. Rundle, 103 H. S. 222; Chaffraix v. Board of Liquidation, 11 Fed. Rep. 638.) Where a married woman, sole owner of a patent, brings suit thereon for an infringement, her husband need not be a party. Lorillard v. Standard Oil Co. 18 Blatchf. 199.
Where the real party to a controversy is clearly entitled to have his rights passed upon by the courts of the United States, he is entitled to remove, although the the nominal party has no such right, (Cohens v. Virginia, 6 Wheat. 264,) and though the nominal party be a party on the record, (Greene v. Klinger,
See now Bacon v. Rives, 5 Morr. Trans. 35.