of a defendant, who, may be a proper, but who is not an indispensable, party to the controversy, will not prevent such a removal.28 30 The fact that one of the defendants has made a default in appearing or pleading,29 or has appeared and disclaimed, or has answered and not renewed the case 31 or that judgment has been entered against one of them before another was served with process, 32 does not make a separable controversy, as regards the other, which will justify a removal. The fact that no process has been served upon one or two or more defendants does not create a separable controversy.33 The separable controversy must be real and substantial, and not one merely fanciful which has no support in the allegations of the bill.34 The separability of the controversy must be determined on the plaintiff's pleading alone,35 as it stands when the cause is removed,36 at least 28 Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Geer v. Mathieson Alkali Works, 190 U. S. 428, 23 Sup. Ct. 807, 47 L. ed. 1122; Chester v. Wellford, Fed. Cas. No. 2,662 (2 Flip 347); Stevens v. Richardson, 9 Fed. 191, 193 (20 Blatchf. 53); County Court v. Baltimore & O. R. Co., 35 Fed. 161; Boatmen's Bank v. Fritzlen, C. C. A., 135 Fed. 650 (a prior mortgagee or lienholder in a suit for the foreclosure of a junior incumbrance); Fritzlen V. Boatmen's Bank, aff'd 212 U. S. 364; Stewart v. Mordecai (Georgia), 40 Ga. 1, 2 Am. Rep. 555; Barney v. Latham (Kentucky), 3 Ky. Law Rep. 144. 29 Putnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. 746, 29 L. ed. 65; Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. 426, 29 L. ed. 679; affirming order Hamlet v. Fletcher, 24 Fed. 305; Brooks v. Clark, 119 U. S. 502, 30 L. ed. 482; Hax v. Caspar, 31 Fed. 499; Fairchild v. Durand (New York), 8 Abb. Prac. 305. But see Robert v. Pineland Club, 139 Fed. 1001. 30 City of Bellaire v. Baltimore & O. R. Co., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. ed. 910; New Jersey Zinc Co. v. Trotter, Fed. Cas. No. 10,167; Hax v. Caspar, 31 Fed. 499; Dow v. Bradstreet Co., 46 Fed. 824; Goodnow v. Litchfield, 47 Fed. 753. 31 Re City of Seattle, 237 Fed. 100. 32 Brooks v. Clark, 119 U. S. 502, 30 L. ed. 482; Armstrong v. Kansas City Southern Ry. Co., 192 Fed. 608. 33 Brown v. Trousdale, 138 U. S. 389, 11 Sup. Ct. 308, 34 L. ed. 987; Patchin v. Hunter, 38 Fed. 51. Contra, Wormser v. Dahlman, Fed. Cas. No. 18,048 (16 Blatchf. 319); Tremper v. Schwabacher, 84 Fed. 413. 34 MacGinnis v. Boston & M. Consol. Copper & Silver Min. Co., C. C. A., 119 Fed. 96, 101. See Snow v. Smith, 88 Fed. 657. 35 Ames v. Chicago, S. F. & C. Ry. Co., 39 Fed. 881; Riser v. Southern Ry. Co., 116 Fed. 215; MacGinnis v. Boston & M. Consol. Copper & Silver Min. Co., 119 Fed. 96, 55 C. C. A. 648; Union Terminal Ry. removed when no cross-bill or counterclaim has been interposed.37 The legal effect of the allegations is determined by the court and not solely by the prayer of relief.38 Usually the law of the State governs in this respect.30 The pleading of the defendant, either by cross-bill counterclaim, or otherwise, of a separate claim, which is purely a matter of defense, or is directly connected with the plaintiff's original pleading, or the answer, does not present a separable controversy.40 The interposition of separate defenses by answers will not make a case removable; 41 even though one of them, in which all of the defendants are not interested, arises under the Constitution or laws of the United States.42 Co. v. Chicago, B. & Q. R. Co., 119 Fed. 209; Dougherty v. Yazoo & M. V. R. Co., 122 Fed. 205, 58 C. C. A., 651; Fogarty v. Southern Pac. Co., 123 Fed. 973; Harley v. Home Ins. Co., 125 Fed. 792; Southern Ry. Co. v. Sittasen (Indiana), 74 N. E. 898; Illinois Cent. R. Co. v. Harris (Mississippi), 38 So. 225, 85 Miss. 15; National Docks & N. J. Junction Connecting Ry. Co. v. Pennsylvania R. Co. (New Jersey), 52 N. J. Eq. 58, 28 Atl. 71. 36 Puckett v. Columbus Power Co., 248 Fed. 353. 37 Hack v. Chicago & G. S. Ry. Co., 23 Fed. 356. 38 Hough V. Société Electrique Westinghouse, 232 Fed. 635. 39 Bloede v. Van Dyke, 222 Fed. 347; Atlantic Coast Line R. Co. v. Feaster, 260 Fed. 881. 40 Wilson v. Oswego Tp., 151 U. S. 56, 14 Sup. Ct. 259, 38 L. ed. 70; Donohoe v. Mariposa Land & Mining Co., Fed. Cas. No. 3,989 (5 Sawy. 163); Brande v. Gilchrist, 18 Fed. 465 (where a counter-claim had been interposed in an equitable action in the State court and no repleader was had nor cross-bill filed after the removal); Rumsey v. Call, 28 Fed. 769; Shaver v. Hardin, 30 Fed. 801; Maish v. Bird, 48 Fed. 607. 41 Louisville & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. ed. 63; Putnam v. Ingraham, 114 U. S. 57, Sup. Ct. 746, 29 L. ed. 65; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. ed. 331, Starin v. City of New York, 115 U. S. 248, 6 Sup. Ct. 28, 29 L. ed. 388; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. ed. 899; Core v. Vinal, 117 U. S. 347, 6 Sup. Ct. 767, 29 L. ed. 912; Plymouth Consol. Gold Min. Co. v. Amador & S. Canal Co., 118 U. S. 264, 6 Sup. Ct. 1034, 30 L. ed. 232; Little v. Giles, 118 U. S. 596, 7 Sup. Ct. 32, 30 L. ed. 269; reversing decree Giles v. Little, 13 Fed. 100, 2 McCrary, 370; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203, 33 L. ed. 473; Patchin v. Hunter, 38 Fed. 51; O'Harrow v. Henderson, 52 Fed. 769; Arrowsmith v. Nashville & D. R. Co., 57 Fed. 165; Thurber v. Miller, 67 Fed. 371, 14 C. C. A., 432, 32 U. S. App. 209; Robbins v. Ellenbogen, 71 Fed. 4, 18 C. C. A. 83, 36 U. S. App. 242; American Bridge Co. v. Hunt, C. C. A., 130 Fed. 302. 42 Chicago, Rock Island & Pac. The allegations in the petition for removal are immaterial.43 Where there are separate remedies against the several parties upon the same cause of action, there is no separable controversy.44 In a suit to establish a lien upon property bought under a reorganization agreement, the purchaser has no controversy with the plaintiff which is separable from that between the latter and the other defendants who are interested in such agreement.45 It has been said that matters, which are mere incidents to the principal subject-matter of the suit, do not present a separable controversy; 46 and that collateral issues, connected with the case, do not destroy the right of removal.47 Where the defendants are interested in separate parts of the same subject-matter, no separable controversy is presented.48 Ry. Co. v. Martin, 178 U. S. 245, 248, 44 L. ed. 1055. 43 Hazard v. Robinson, 21 Fed. 193; Fogarty v. Southern Pac. Co., 123 Fed. 973. 44 Winchester v. Loud, 108 U. S. 130, 27 L. ed. 677; Ayers v. Wiswall, 112 U. S. 187, 28 L. ed. 693; Merchants' Cotton Press & Storage Co. v. Insurance Co. of N. A., 151 U. S. 368, 38 L. ed. 195; Gudger v. Western N. C. R. Co., 21 Fed. 81. 45 Genesee Valley Trust Co. v. Kansas City, M. & O. Ry. Co., 240 Fed. 524. 46 Shainwald v. Lewis, 108 U. S. 158, 2 Sup. Ct. 385, 27 L. ed. 691; affirming order 5 Fed. 510, 6 Sawy. 585; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. ed. 528; Wilder v. Virginia, T. & C. Steel & Iron Co., 46 Fed. 676; MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co., 119 Fed. 96, 55 C. C. A. 648; Republic Fire Ins. Co. v. Keogh (New York), 23 Hun Contra, Langdon v. Fogg, 18 Fed. 5 (21 Blatchf. 392). But see Campbell v. Milliken, 119 Fed. 981. 644. 47 Osgood v. Chicago D. & V. R. Co., Fed. Cas. No. 10,604 (6 Biss. 330). Fed. Prac. Vol. III-47 48 Temple v. Smith, 4 Fed. 392, 2 McCrary, 226; Merchants' Nat. Bank v. Thompson, 4 Fed. 876; Friedler v. Chotard, 19 Fed. 227; Independent District v. Bank of Rock Rapids, 48 Fed. 2; Re City of Chicago, 64 Fed. 897; O'Neil v. Birdseye, 244 Fed. 254. A defendant who is a holder of stock in a corporation co-defendant has not such an interest in the controversy, to which the latter is a party, to prevent his removal of a separate controversy in which he alone is interested. Buck v. Felder, 106 Fed. 419. Where the bill charged one of several defendants with failure to perform his contract to transfer a patent to the complainant, and that the others, with knowledge of his default, had bought machines from him, for the use of which they should account, Nesmith v. Calvert, Fed. Cas. No. 10,123, 1 Woodb. & M. 34. A suit to recover the possession of town bonds, when the party in possession disclaimed all interest in them except a lien for storage and counsel fees, while one of the depositors of the bonds and the township disputed the right of Where a several liability is sought to be enforced against different defendants, a separable controversy exists between each of them and the plaintiff.49 Where the parties are sued jointly the plaintiff to possession and claimed that the bonds were void. Wilson v. Union Sav. Ass'n, 30 Fed. 521. A suit by the beneficiary under a will against the executors, the testamentary trustees, and a lessee of part of the trust estate, where the complaint prayed, that the executors may complete the trust fund for plaintiff's benefit by conveying real estate to the trustee; that the trustees pay to her whatever may be due for interest on said trust fund, and also pay to her, for her benefit, out of the estate, other moneys which she claims; that the trustees be enjoined from charging against her certain moneys which the estate has paid, and from paying to trustees of certain residuary trusts any moneys which might be in, or might hereafter come into, their hands; and that the rent of the part of the trust held by them, which may become due under the lease to the remaining defendant, be paid to the plaintiff, Stevens v. Richardson, 9 Fed. 191 (20 Blatchf. 53). Where remaindermen sued to set aside a settlement by the life tenant with an insurance company for a less amount than the face value of the policy, charging that the life tenant held the insurance impressed with a trust for the plaintiffs' benefit, and praying judgment against both defendants for the face value of the policy with interest, and that they be required to pay the same into court, to be invested for the benefit of the plaintiffs and the life tenant, interest only to be paid the latter during her life; it was held that there was a separable controversy between the insurance company and the plaintiffs. Harley v. Home Ins. Co., 125 Fed. 792. 49 Chicago & A. R. Co. v. New York, L. E. & W. R. Co., 24 Fed. 516; Youtsey v. Hoffman, 108 Fed. 693; Manufacturers' Commercial Co. v. Brown Alaska Co., 148 Fed. 308 (an action by the holder of a note against the maker and the indorsers, in which it was held that the liability of each indorser presented a separable controversy from that with the others and with the maker), Feibleman v. Edmonds (Texas), 69 Tex. 334, 6 S. W. 417. A suit to establish an indebtedness against an insolvent corporation and for judgment against a second defendant, which had assumed the indebtedness of the former. Mecke v. Valleytown M. Co., 93 Fed. 697, 35 C. C. A., 151; affirming 89 Fed. 209; Trana v. Chicago, M. & T. S. Ry. Co., 228 Fed. 824. But see Lewis v. Weidenfeld, 76 Fed. 145; Mecké v. Valleytown Mineral Co., 122 N. C. 790, 29 S. E. 781. Where a suit was brought against an employee of the plaintiff, who was charged with embezzlement, and the surety upon the bond guaranteeing plaintiff against loss by any of the acts of such employee; it was held that a separable controversy existed between the plaintiff and the surety. Iowa Lillooet Gold Min. Co. v. Bliss, 144 Fed. 446. Where exemplary damages upon special facts were claimed against one of two de 50 and severally, it seems that a separable controversy exists.5 When the plaintiffs sue to enforce a common right, which they might have asserted in separate actions, there is no separable controversy, even though their rights depend upon different circumstances.51 There is no separable controversy between defendants, against whom the plaintiff seeks to establish a joint liability alone, either in contract,52 or in tort,58 although the fendants sued upon a joint obligation; it was held that there was a separable controversy, which might be removed. Feibelman v. Edmunds (Texas), 69 Texas 334, 6 S. W. 417. 50 Langdon v. Fogg, 18 Fed. 5, 7, 9; Boyd v. Gill, 19 Fed. 145, 21 Blatchf. 543. 51 Reineman v. Ball, 33 Fed. 692; Wilder v. Virginia, T. & C. S. & I. Co., 46 Fed. 676; per Fuller, C. J. (where the plaintiffs were different stockholders, some holding full paid stock, and others stock that was assessable, and also creditors holding separate claims to enforce a cause of action by the corporation). See also Re McClean's Estate, 26 Fed. 49. 52 Stone v. State, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. ed. 962; Folsom v. Continental Nat. Bank, 14 Fed. 497, 4 Woods 521; Western Union Tel. Co. v. Brown, 32 Fed. 337; Woodburn v. Clay, 33 Fed. 897; Mutual Reserve Fund Life Ass'n v. Farmer, 77 Fed. 929, 23 C. C. A. 574; Guarantee Co. of North America v. Mechanics' Sav. Bank & Trust Co., C. C. A., 80 Fed. 766; LathropShea & Henwood Co. v. Pittsburg, S. & N. R. Co., 135 Fed. 619; Boykin, Sol. Gen., ex rel. Johnson v. Morris Fertilizer Co., 257 Fed. 827; Fusz v. Trager (Louisiana), 38 La. Ann. 173; O'Kelly v. Richmond & D. R. (North Carolina), 89 N. C. 58. 53 Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. ed. 331; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730, 29 L. ed. 899; Core v. Vinal, 117 U. S. 347, 6 Sup. Ct. 767, 29 L. ed. 912; Plymouth Consol. Gold Min. Co. v. Amador & S. Canal Co., 118 U. S. 264, 6 Sup. Ct. 1034, 30 L. ed. 232; Tuedt v. Carson, 13 Fed. 353 (4 McCrary, 426); Southworth v. Reid, 36 Fed. 451; Kaitel v. Wylie, 38 Fed. 865; Dow v. Bradstreet Co., 46 Fed. 824; O'Harrow v. Henderson, 52 Fed. 769; Brown v. Coxe Bros. & Co., 75 Fed. 689; Deere, Wells & Co. v. Chicago, M. & St. P. Ry. Co., 85 Fed. 876; Moore v. Los Angeles Iron & Steel Co., 89 Fed. 73; Evans v. Felton, 96 Fed. 176; Marrs v. Felton, 102 Fed. 775; Ward v. Franklin, 110 Fed. 794; Riser v. Southern Ry. Co., 116 Fed. 215; Person v. Illinois Cent. R. Co., 118 Fed. 342; Hoye v. Great Northern Ry. Co., 120 Fed. 712; Dougherty v. Yazoo & M. V. R. Co., C. C. A., 122 Fed. 205, 58 C. C. A. 651; Fogarty v. Southern Pac. Co., 123 Fed. 973; American Bridge Co. v. Hunt, C. C. A., 130 Fed. 302; Davenport v. Southern Ry. Co., 135 Fed. 960, 68 C. C. A. 444; reversing judgment 124 Fed. 983. Contra, Clark v. Chicago, M. & St. P. Ry. Co., 11 Fed. 355 (3 McCrary, 591); Kerling v. Cotzhausen, 16 Fed. 705 (11 Biss. 582). |