98 F. 452 | U.S. Circuit Court for the District of Northern California | 1899
This action was first brought in the superior court of the city and county of San Francisco, state of California, by the plaintiff, a citizen of said city, county, and state, against the defendants, to quiet title to certain described real property, situated in said city and county of San Francisco, upon the averment that "the defendants claim some estate, right, title, and interest
By the act of March 8, 1887, as amended by the act of August 13, 1888 (25 Stat. 433), governing the removal of causes from state courts, it is provided in section 2:
“Any otter suit [Ilian one arising under tte constitution, laws, or treaties of the United Si ates] of a civil nature, at law or in equity, of which the circuit courts of tte United States are given jurisdiction by tte preceding see-lion, and which are now pending, or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district, by tte defendant or defendants therein, being non-residents of that state. And when in any suit mentioned in this section ihere shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually Interested in such controversy may remove said suit into the circuit court of tte United States for tte proper district.”
It has been repeatedly held that, under this statute, the failure of any of the defendants to join in the petition is fatal to the right of removal, when there is no separable controversy. Rogers v. Van Nortwick (C. C.) 45 Fed. 513; Thompson v. Railway Co. (C.C.) 60 Fed. 773; Railroad Oo. v. Townsend (C. C.) 62 Fed. 161; Mitchell v. Smale, 140 U. S. 406, 11 Sup. Ct. 819, 840, 35 L. Ed. 442. The question to he determined is, therefore, does the action before the court present a separable controversy between the plaintiff and the defendant Car-pentier? It is said in Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528, and cases therein cited, that, in order to justify a removal of a cause on the ground of a separate controversy between citizens of different states, “the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit.” In Goldsmith v. Gilliland (C. C.) 24 Fed. 154, it was decided that a suit to quiet title to real property presented a subject-matter capable of such separable determination, and, “where a number of persons claim undivided interests in real property adversely to one in possession of the same, the latter may maintain a suit to quiet his title against any or all of such claims, and neither of said persons or adverse claimants is a necessary party to a suit for that purpose against the other.” The plaintiff herein seeks to settle in one proceeding any and