35 F. 634 | U.S. Circuit Court for the District of Minnesota | 1888
This is a motion to remand. The facts are as follows: Plaintiffs, citizens of the state of Minnesota, claiming to be the owners of some logs, commenced this action of replevin against the St. Croix Lumber Company, also a citizen of the state of Minnesota, the party in whose possession the logs were. Service was made and issue joined. Thereafter, by leave of. court, a defendant by the name of Wing intervened. He had sold the logs to the St. Croix Lumber Company, and was notified by that company to defend the suit. In pursuance of this notice, and by leave of court, he intervened, setting up his original title, and that he was a citizen of the state of Wisconsin. Upon his petition, after the filing of a bond, the case was transferred to this court; and now plaintiffs move to remand it, on the ground that there is no separable controversy.
The gist of the action of replevin is the possession of the property, and the action lies against the party in possession. In this case, the party claiming to be the owner and the party in possession were both citizens of the state of Minnesota; and as between them, of course, it is a local action, and not removable. Wing, the intervenor, claims nothing independent of the original plaintiff and defendant; asserts no rights antagonistic to those of the defendant. He simply says he was the vendor of the logs to the original defendant, and is here to protect him in his possession. Whatever doubts may have existed in times past, it is now settled that such a case as this presents no separable controversy. In the case of Wilson v. Railway Co., which was decided in the circuit court for the Eastern district of Missouri, and reported in 22 Fed. Rep. 3, the court said:
.“If a non-resident party has an interest in a controversy which is separate and distinct, and does not necessarily involve the interest of the other defendants in the issue, or the other party on the same side, he can remove the whole case into the federal courts. On the other hand, if the interests of the other parties are so identified, and so mixed up, that they must and should be con*635 sidered together, and depend on the final decree, which must depend upon and in volvo the rights of both parties, then it cannot be removed where one of tiie parties is a citizen of the same state with the plaintiff or defendant.”
This case was taken to the supreme court of the United States, and affirmed in 114 U. S. 60, 5 Sup. Ct. Rep. 738. So it is clear that this is a ease which cannot bo removed into this court. And although the case has been here a long time, and although certain preliminary proceedings have been had in this court, the right to challenge the jurisdiction, and insist upon a remanding of the case, is not waived. Of course, whore there are mere defects in the proceedings for removal, such defects can be waived; but where the question is one of jurisdiction and as to the right of removal, mere delay or action on preliminary matters do not waive the right to insist upon the matter of jurisdiction. The motion to remand will be sustained.
