38 F. 870 | U.S. Circuit Court for the District of Northern Iowa | 1889
The complainants as heirs at law of M. W. Bacon, deceased, brought this suit in the district court of Woodbury county, Iowa, for the purpose of quieting their title to certain realty situated in Woodbury county. In the amended bill f}led the complainants averred that in August, 1856, Moses W. Bacon died intestate seised in fee of the realty in question, leaving the complainants his heirs at law, whereby they became seised in fee of two-thirds of said realty; that the defendants make some claim adverse to the title and estate of complainants ami are now in possession of said realty; that said defendants claim title under a certain pretended administrator’s deed executed by one Horace C. Bacon; as administrator of the estate of Moses W. Bacon, to one Luther C. Cole, by virtue of an order of the county court of Woodbury county, Iowa, made on the loth day of December, 1858; that said order and deed based thereon are void, for reasons set forth in the bill. The bill concludes with a prayer that plaintiffs’title be established; that the defendants be barred from asserting any title or claim adverse to plaintiffs; that the defendants be required to account for the rents and profits by them received respectively; and for other and further relief. To this bill the Chicago, Milwaukee & St. Paul Railway Company, with others, wras made a. party defendant, and at a proper time the company tiled a petition and bond for the removal of the cause into the federal court averring in the petition that the company was a corporation created under the law's of the state of Wisconsin; that the complainants, when the suit was brought and ever since, were citizens of Massachusetts, and the other defendants wTere and continue to be citizens of states other than Massachusetts; that the petitioner wa,s the sole owner of a part of the realty in dispute, and was in sole possession thereof; and that none of the other defendants had or claimed any interest therein, and that the value thereof exceeded §2,000, and upon the ground of the suit involving a separable controversy between complainants and the railw'ay company, a removal thereof was prayed. Upon the filing of the transcript in this court, a motion was made to remand the cause, on the ground that it was not removable, and this court was without jurisdiction. In support of the motion, reliance was had upon the cases of Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735; Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161, and other cases based thereon, wherein the supreme court holds that where a cause of action, whether on contract or in tort, is joint or joint and several, and is declared on jointly, the defendants cannot, by pleading separately or averring separate defenses, make the cause of action separable into distinct controversies within the meaning of the removal act.
The present case does not come within the principle of these decisions.
ON SECOND APPLICATION.
Upon the announcement of the ruling upon the motion to remand, the complainants dismissed the suit as to the Chicago, Milwaukee & St.. Paul Railway Company, and also struck from the bill all portions thereof asking an accounting with the defendants separately for the rents and profits of the realty, and thereupon complainants renewed
It is also urged against the jurisdiction of the court that the suit was brought in equity, but that there is a complete remedy at law, and therefore it should be remanded. Under the provisions of the state statute, the suit was properly brought in equity, notwithstanding the fact that it is averred that the defendants are in possession. Upon the removal of such a cause into this court, if under the rules governing this court the case should be proceeded in at law instead of in equity the parties are accorded leave to reform the pleadings and transform the cause into an action at law. Was this not so, it would not be a ground for remanding the cause to the state court, but would be ground for dismissing complainants’ bill, a result which would hardly be satisfactory to the parties now questioning the jurisdiction of the court. But it does not appear in this case that it is one not cognizable in a court of equity. The averments of the bill are to the effect that the complainants are the owners of the undivided two-thirds of the realty, and that the defendants are in the possession of the entire property. An action of eject