Cooke v. Seligman.

Large, 470,) where all such other defendants apply for the removal, and where there is a controversy between the alien and such citizens, which is the only controversy in the suit,

Some of the petitioners for removal signed the petition by an attorney, but the order of the State Court for the removal stated that the petition was duly made and filed by the petitioners, and that the petitioners appeared by counsel and moved for such order. On the contents of the petition and the bond, and the action of the petitioners by their counsel, in moving for such order, and the contents of such order: Held, that the petition must be regarded as the petition of the petitioners. The averment, in the petition, that certain of the petitioners, as they are the qualified executors of the last will and testament of J. B., deceased," were and are citizens of the State of New York, was held, in this case, to mean, that they were sued as such qualified executors, and to be an averment of their personal citizenship.

The absence of any acknowledgment or proof of the execution of the bond was held to be a matter of practice for the State Court to pass upon, and not reviewable by this Court, after the State Court had accepted the bond. The bond contained, in its condition, a clause providing that the defendant should do, or cause to be done, such other and appropriate acts as, by said Act of 1875, and other Acts of Congress, are required to be done, on the removal of a suit: Held, that such clause was a sufficient compliance with any requirement in § 3 of the Act of 1875, that the bond should be one for appearing in the Federal Court.

(Before BLATCHFORD, J., Southern District of New York, February 5th, 1880.)

BLATCHFORD, J. Although the complaint avers that Wostenholme owns a number of bonds, it does not aver that he makes any claim in respect of them, on account of any matters alleged in the bill as matters on account of which the plaintiff makes a claim in respect of bonds. Nor does the plaintiff sue on behalf of Wostenholme, or claim to represent him, as respects any claim made on the other defendants or any of them. On the whole scope of the bill, the words "similarly situated," in the preamble to the complaint, and in paragraphs 14 and 16, and in subdivisions 1, 2 and 3 of the prayer, mean the original allottees, called, also, "takers" in paragraph 14. Subdivisions 1 and 2 of the prayer pray no relief for the benefit of Wostenholme, nor does subdivision 3. That subdivision only prays that the moneys to be accounted for may be refunded for the benefit of the original allottees,

Cooke v. Seligman.

of whom Wostenholme was not one.

It does not pray that such moneys be refunded for the benefit of the original allottees and holders not original allottees, leaving such moneys to be distributed afterwards. Therefore, the complaint makes no case on which persons not original allottees could put in any claim to any moneys refunded. So, that part of the prayer of subdivision 3 which relates to the superior right of the original allottees, is to be rejected as surplusage, and Wostenholme stands an unnecessary and improper party to the suit, and no real and actual party. This being so, it follows that the suit was removable under the first clause of section 2 of the Act of 1875, as being a suit in which there is a controversy between citizens of various States of the United States and a foreign citizen or subject, and where all the parties defendant have applied for the removal, and where such controversy is the only controversy there is in the suit. The petition for removal makes out a case under said clause, although it may be framed so as to attempt to make out, also, a case under the second clause of the same section.

It is alleged that there are certain defects on the face of the petition and the bond, which invalidate the removal.

The petition, in the body of it, purports to be the petition of all of the defendants, except Wostenholme, by the same names and designations as set forth in the caption or title of the suit in the summons and in the complaint in the State Court. In such caption or title, among the names of the defendants, are these: "James M. Brown, John Crosby Brown, Howard Potter and John S. Shultze, as they are the qualified execu tors of the last will and testament of James Brown, deceased." An aggregation or list of the names of the defendants is not. found in any place, in the summons or complaint, except in such caption or title. The complaint states, that James Brown, by his will, appointed "the defendants James M. Brown, John Crosby Brown, Howard Potter and John S. Shultze," with two other persons, "his executors," and that letters testamentary were issued "to the defendants James M. Brown, John Crosby Brown, Howard Potter and John S.

Cooke v. Seligman.

Shultze, as the qualified executors of the last will and testament of the said James Brown, deceased." The petition is preceded by the title or caption of the suit, giving the name of the plaintiff and the names of all the defendants, and in it, among the latter, "James M. Brown, John Crosby Brown, Howard Potter and John S. Shultze, as they are the qualified executors of the last will and testament of James Brown, deceased." The petition states, "that the controversy in said suit is between foreign citizens or subjects and citizens of different States of the United States;" that, of the defendants, sundry ones named, and, among them, "John Crosby Brown, individually," (he being named by that designation, as a defendant, in the title to the summons, and in the title to the complaint, and in the title to the petition, and as a petitioner, in the list of petitioners in the beginning of the body of the petition,) "and James M. Brown, John Crosby Brown, and Howard Potter, as they are the qualified executors of the last will and testament of James Brown, deceased," were each and all, at the time of the commencement of this suit, and still are, citizens of the State of New York, and that the defendant John S. Shultze, also a qualified executor of the last will and testament of James Brown, deceased, was then and still is a citizen of the State of New Jersey." Among the signatures to the petition are these: Jas. M. Brown-George H. Brown-John Crosby BrownHoward Potter, by James M. Brown, Atty.-Jno. S. Schultze -as the qualified executors of the last will and testament of James Brown, deceased-the names being under each other, and included in a bracket, at the left of said designation—also, "Trenor W. Park, by J. G. McCullough, his atty."- also, "Isaac Seligman, by Jos. Seligman, atty."- also, "Leopold Seligman, by Jos. Seligman, atty."—also, "Henry Seligman, by Jos. Seligman, atty."-also, "Abraham Seligman, by Jos. Seligman, atty."-also, "Wm. Seligman, by Jos. Seligman, atty."--also, "A. A. Selover, by Billings & Cardozo, attys."-also, "W. Watts Sherman, by Bristow, Peet, Burnett & Oydyke, attys."-also, "George H. Brown "-also,

"John Crosby Brown." The petition is sworn to by the defendant Park.

The condition of the bond offered to the State Court is, that the obligation shall be void, "if the said petitioners shall enter in the said Circuit Court of the United States, on the first day of its next session, a copy of the record in said suit, and shall well and truly pay all costs that may be awarded by said Circuit Court of the United States, if said Court shall hold that said suit was wrongfully or improperly removed thereto, and do or cause to be done such other and appropriate acts as, by the Act of Congress approved March 3d, 1875, and other Acts of Congress, are required to be done upon the removal of a suit into the United States' Circuit Court, from a State Court." The bond is not acknowledged or proved.

On the 21st of October, 1879, the State Court made an order in the suit. The title of the suit, in the order, gives the names and designations of the defendants as in the title. to the summons and the complaint. It says: "A petition having been duly made and filed in this suit, by the several defendants," naming the petitioners by the same names and designations as in the body of the petition, "on this 21st day of October, A. D. 1879, praying for the removal thereof into the Circuit Court of the United States for the Southern Dis trict of New York, and said defendants and petitioners having duly made and filed therewith a bond, with good and sufficient surety, for their entering in such Circuit Court, on the first day of its next session, a copy of the record in this suit, and for paying all costs that may be awarded by the said Circuit Court, if said Court shall hold that this suit was wrongfully or improperly removed thereto, and for doing such other and appropriate acts as required pursuant to the statutes of the United States in such case made and provided. now, upon motion of John G. McCullough, Esq., of counsel for the petitioners, it is declared, that it is made to appear to the satisfaction of this Court, *** and that the controversy therein is wholly between an alien and citizen and subject of

Cooke v. Seligman.

the United Kingdom of Great Britain and Ireland, and citizens of different States of the United States of America, that is to say, between the above-named plaintiff, who is a citizen and subject of the United Kingdom of Great Britain and Ireland, and the above-named defendants and petitioners, who are citizens of different States of the United States of America, *** and it is further declared and ordered, that this Court doth accept the said petition and bond so made and filed as aforesaid, and that the suit be removed for trial into the next Circuit Court of the United States to be held in the Southern District of New York, and that this Court proceed no further therein, and that all proceedings in this Court and the said cause be and the same are hereby stayed."

(1.) It is contended, that § 3 of the Act of March 3d, 1875, (18 U. S. Stat. at Large, 471,) provides only, that a "party" "may make and file a petition," and does not provide that an attorney may, and, that, if an attorney in fact may, the fact of his attorneyship and its scope must be shown to the State Court. The order of the State Court states, that the petition was duly made and filed by the petitioners named, and that such petitioners appear by Mr. McCullough, as their counsel, and move for the order which the Court makes. In Meyer v. Construction Co., (10 Otto, 457,) the petition for removal stated, in the body of it, that it was made by the two defendants, the petitioners, naming them. The petition was not signed or sworn to, but it was filed with the clerk. The Court said: "The petition was not signed. No objection was made on this account in the State Court, and it came too late in the Circuit Court. If it had been made in the State Court, the defect, if, in fact, there was one, would, no doubt, have been cured at once by the signature of counsel. The petition was in writing. On its face, it purported to be the petition of Meyer and Dennison, and it was, in fact, the petition of Dennison. This the Court knew, because it was actually presented by the counsel of Dennison, and was accompanied by a bond purporting, also, to be signed in the name of Meyer and Dennison. In short, everything in the whole proceedings