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Recorder, 27 La. An. 291; State v. Com. Pleas, 3 Ohio, 49; Ludlow v. Kidd, 3 Ohio, 48; Miller v. Lynde, 2 Robt. 444; Tibbatts v. Berry, 10 Mon. B. 473; Leonard v. Jones, 2 Edw. 136; Shelby v. Hoffman, 9 Ohio St. 453); when there were several defendants, all the persons must be within the description of the persons entitled to a transfer, and all must join in the application. (Calderwood v. Hager, 20 Cal. 167.) So in an ejectment case, where but one was an alien, the application was denied (Calderwood v. Hager, 20 Cal. 167; see Reed v. Calderwood, 22 Cal. 463); or if one of the several plaintiffs is a citizen of another State (Hubbard v. Northern R. Co., 3 Blatchf. 84; Ex parte Turner, 3 Wall. Jr. 258; Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Hazard v. Durant, 9 R. I. 602; Knapp v. Railroad Co., 20 Wall. 117); or if the defendants are all citizens of the State where suit is brought (Lifford v. Beatty, 12 Ohio St. 189), or if the defendant was a citizen of the State at the time suit was commenced, it cannot be removed (Ins. Co. v. Pechner, 95 U. S. 183; Richardson v. Packwood, 1 Martin N. S. 290; Risley v. Indianapolis B. & W. R. Co., 8 N. Y. Supr. 202); but the rule does not apply to mere nominal or formal parties. (Brown v. Strode, 5 Cranch, 303; Wormley v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. 467; Ward v. Arredondo, 1 Paine, 410.) When the writ is served on one alone, he may remove the cause without regard to others named as defendants. (Fallis v. McArthur, Ï Bond, 100; Norton v. Hayes, 4 Denio, 245; Davis v. Cook, 9 Nev. 134.) And if only one partner of a firm is served with process, he may file a petition for removal. (Vandervoort v. Palmer, 4 Duer, 677.) If one defendant is served personally, and the other is served by publication, the one served personally cannot remove. (Bryan v. Ponder, 23 Ga. 480.) It is not necessary that the application be made by all the defendants at the same time; each may apply for removal on his appearance. (Ward v. Arredondo, I Paine, 410.) It must appear that the plaintiff is a citizen of the State in which suit is brought (Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; Harrison v. Shorter, 59 Ga. 512; Smith v. Butler, 38 How. Pr. 192; Savings Bank v. Benton, 2 Met. (Ky.) 240), at the commencement of the suit. (People v. Superior Court, 34 Ill. 356; Upton

FED. PROC.-29.

v. N. J. S. R. Co., 25 N. J. Eq. 372; Holden v. Putnam F. Ins. Co., 46 N. Y. 1; Pechner v. Phoenix Ins. Co., 95 U. S. 183.)

Suit for injunction.-The right of removal attaches where suit was brought to obtain an injunction against a citizen of another State (Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; 3 Abb. Pr. N. S. 453; Stewart v. Mordecai, 40 Ga. 1); although another person is made a party defendant against whom no injunction is sought (Stewart v. Mordecai, 40 Ga. 1); and although it does not appear that the suit can be brought to a final determination as respects him without the presence of other defendants (Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472; 3 Abb. Pr. N. S. 453); or if the other defendants disclaim all interest in the suit (New Jersey Zinc Co. v. Trotter, 23 Int. Rev. Rec. 416); but the sole purpose of the bill must be to restrain the defendants (Taylor v. Rockefeller, 25 Pittsb. L. J. 137; Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372); but a bill to obtain a dissolution of partnership and restrain partners from interfering with partnership property cannot be removed where some are citizens of the same State. (Taylor v. Rockefeller, 25 Pittsb. L. J. 137.) So the cause cannot be removed if the bill prays for an injunction, if it is merely incidental to the relief sought. (Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372.) The word 'or," as used in the statute, shows that Congress intended to provide for the case where the suit was to obtain an injunction, and also where the presence of other defendants is not necessary to a determination of the controversy. (Fisk v. Chicago, R. I. & P. R. Co., 53 Barb. 472.) If a party files a bill to enjoin an execution creditor, the presence of the sheriff is unnecessary to final determination of the controversy. (Allen v. Ryerson, 2 Dill. 501.)

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Final determination of controversy.-The " troversy" is the dispute between the parties, to be ascer tained by an inquiry as to what is asserted and denied. (Ex parte Andrews, 40 Ala. 639.) To ascertain what is the controversy, inquiry must be made as to what is asserted or denied, or what is claimed and resisted. (Ex parte Andrews, 40 Ala. 639.) If the controversy is sus

ceptible of division, the case may be removed, although some of the defendants are citizens of the State where suit is brought. (Fields v. Lamb, Deady, 430; Bixby v. Couse, 8 Blatchf. 73; Dart v. Walker, 43 How. Pr. 29.) Cases where there can be a final determination of the controversy are removable without the presence of the other defendants. (Allen v. Ryerson, 2 Dill. 501; Bixby v. Couse, 8 Blatchf. 73.) An alien or non-resident defendant, subject to the condition specified, may remove the cause as between himself and the plaintiff, leaving the cause as to the other defendants to proceed in the State court (Sewing Mach. Cos.' Case, 18 Wall. 553; S. C., 110 Mass. 70; McGinnity v. White, 3 Dill. 350; Field v. Lownsdale, Deady, 288); but no one can' remove a cause, unless a separate judgment can be rendered against him without the presence of the other defendants. (Merwin v. Drexel, 49 How. Pr. 115.) Where the title to real estate is held by one of the defendants for the benefit of all, a final determination can be had, although a part of the defendants do not join, if it is alleged that the title was obtained by the fraud of all the defendants. (Lewis v. White, 7 Chic. L. N. 116.) In a suit to quiet title against tenants in common, one defendant as such tenant may remove the case, if he is otherwise within the provisions of the act. (Field v. Lownsdale, Deady, 288.) Where an indorser claims the benefit of usurious interest paid by the maker, the case can be determined without the presence of the maker. (Stewart v. Mordecai, 40 Ga. 1.) One of several defendants sued as partners may, if the other requisites exist, have the cause removed, so far as concerns himself, if there can be a final determination so far

as

concerns him. (McGinnity v. White, 3 Dill. 350; Wormser v. Dahlman, 57 How. Pr. 286.) If there can be no final determination of the controversy without the presence of the other defendants, the case cannot be removed by the petitioner alone. (Hodgkins v. Hayes, 9 Abb. Pr. N. S. 87; Darst v. Bates, 51 Ill. 489; Burch v. Davenport & St. P. R. Co., 46 Iowa, 449; Washington A. & G. R. Co. v. Alexandria & W. R. Co., 19 Gratt. 592.) If citizens of the State are joint defendants with citizens of other States, the case cannot be removed. (North Riv. S. Co. v. Hoffman, 5 Johns. 300; Williams v. Price, 5

Munf. 507.) An allegation in the petition that the case is susceptible of division is an allegation of law. (Levy v. O'Neil, 14 Abb. Pr. N. S. 63.)

Necessary parties. Where redemption of a mortgage is sought, and the land is held in severalty, all holders are necessary parties. (Miller v. Finn, 1 Neb. 254.) So where a bill is filed against a mortgagor and others to obtain an accounting, the cause cannot be removed on application of one of the parties joined with the mortgagor (Upton v. New Jersey S. R. Co., 25 N. J. Eq. 372); and where a foreclosure suit is filed against a mortgagor and a subsequent mortgagee, the latter cannot remove the cause. (Donahue v. Mariposa L. & M. Co., 5 Sawy. 63.) An action to enforce a joint liability in equity cannot be removed. (Yulee v. Vose, 94 U. S. 539; S. C., 64 N. Y. 449.) If a bill to quiet title is filed against several persons as tenants in common, one of them may remove it (Field v. Lownsdale, Deady, 288); and if one partner only is served with process, he may remove the cause (Wormser v. Dahlman, 57 How. Pr. 286), but a suit against partners to recover the value of goods sold is not susceptible of division. (Mervin v. Wexel, 49 How. Pr. 115; contra, McGinnity v. White, 3 Dill. 350.) A foreign landlord appearing as co-defendant in ejectment cannot remove the cause unless the tenant who is a citizen of the State disclaims all interest in the premises. (Allen v. Robinson, 1 Dill, 119.) So if the tenant is made defendant in ejectment, the landlord, citizen of another State, cannot remove the cause.) Ex parte Turner, 3 Wall. Jr. 258; Ex parte Girard, 3 Wall. Ĵr. 263; Beardsley v. Torrey, 4 Wash. C. C. 286; but see Jackson v. Styles, 4 Johns. 493.) If a person files an interpleader, the cause cannot be removed without the presence of both defendants. (George v. Pilcher, 28 Gratt. 299.) An action of tort against several defendants for a conspiracy cannot be removed by part of them under the Acts of 1866 and 1867. (Ex parte Andrews, 40 Ala. 639; Smith v. Rhines, 2 Sum. 338), nor under the Act of 1875. (Van Brunt v. Corbin, 14 Blatchf. 496.) If a partner brings an action on account against his co-partner and another, the case is not susceptible of a division. (Levy v. O'Neil, 14

Abb. Pr. N. S. 63.) An attachment proceeding is of such a nature that the debtor and garnishee cannot be severed (Weeks v. Billings, 55 N. H. 371), the garnishee not being a defendant within the meaning of the statute. (Weeks v. Billings, 55 N. H. 371.) Where a debtor and trustee for the sale of land are defendants, the debtor alone cannot remove, as the trustee is a necessary party. (Gardner v. Brown, 21 Wall. 36.) So in an attachment proceeding the debtor and garnishee cannot be severed. (Weeks v. Billings, 55 N. H. 371.) Where a corporation, a trustee, and the bond-holders are defendants, the trustee and one of the bondholders cannot have the case removed as to them. (Cape Girardeau R. Co. v. Winston, 4 Cent. L. J. 127; see Gardner v. Brown, 21 Wall. 36.) A controversy concerning the probate of a will cannot be removed on a petition of part of the contestants. (In re Fraser, 10 Chic. L. N. 390.) So one of several opposing claimants cannot remove a cause brought by an executor for settlement of his trust and disposition of the estate. (Ex parte Grimball, 8 Cent. L. J. 151.) So a single creditor or legatee cannot remove the cause where numerous creditors and legatees hold conflicting claims. (Peters v. Peters, 41 Ga. 242; Burts v. Loyd, 45 Ga. 104.) So a citizen of another State, who makes himself a party to a cause where a widow files a petition against an administrator for her support, cannot remove without the presence of the administrator. (Peters v. Peters, 41 Ga. 242.) A trustee in whom the legal title is vested is not a merely nominal party. (Dunn v. Waggoner, 3 Yerg. 59.) So where a trustee, a non-resident, institutes the suit, the cestui que trust, a citizen of the State, cannot remove. (Mead v. Walker, 15 Wis. 499; Geyer v. Hancock Ins. Co., 50 N. H. 224.) The creditor cannot remove the case if a trustee files a bill to enjoin him and the sheriff from levying execution on the trust property. (Nye v. Nightingale, 6 R. I. 439.)

Suits against aliens.-Suits against an alien under the Judiciary Act include only suits between an alien and a citizen of the State. (Mossman v. Higginson, 4 Dall. 11; Hodgson v. Bowerbank, 5 Cranch, 363; Resp. v. Corbet, 3 Dall. 467.) There can be no removal if plaintiff is an

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