6 F. 840 | U.S. Cir. Ct. | 1880
This court has several times held that the petition for removal, or the record of the cause in the state
The only question to be considered, therefore, is whether a party who in good faith becomes the owner of property pending the litigation concerning the title thereto, in a state court, and who, by proper means, makes himself a party to the cause in such court before trial, is entitled to the benefits of the provisions of the act of March 3, 1875, relating to the removal of causes. In other words, if such a party be a non-resident of the state, has he, when coming into the case by intervention, the same right of removal that he would have had if. originally a party plaintiff or defendant ? The statute provides that in any suit of a civil nature, brought in any state court, involving over $500, in which there shall be a controversy between citizens of different states, “either party may remove said suit into the circuit court of the United States,” etc. Section 2, Act of March 3, 1875. Can we, with propriety, limit the application of the words “either party” to the original plaintiff and defendant ? I think not. The act applies to all bona fide litigants in the state courts, whether made parties originally or not. “Either party,”.
But the above-cited section of the act of 1875 further provides that when, in any suit mentioned in the section, “there shall bo 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 plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United States for the proper district.” This clause very clearly applies to a controversy between the original plaintiff and an intervenor who may be brought in in the course of the litigation and before trial. It is enough if the controversy described is in the suit; there is no requirement that it shall bo between the original parties. The intervenor became a defendant within the meaning of this clause, and since there was very clearly a controversy between him and the plaintiff, in which the original defendant had no interest, and which could be fully determined as between them, the right of removal existed.
If the petition for removal had not been filed until after the intervention, it would, upon the principle of the cases heretofore decided by this court, have been necessary to aver the citizenship of the parties at the time of the intervention; but inasmuch as the petition to intervene and the petition for removal were filed at one and the same time, I am of the opinion that the use of the present tense in the latter was sufficient.
It is not necessary to determine whether the motion is in time, (having been made after judgment,) since, independently of that question, it must bo overruled. ' So ordered.
See Beede v. Cheeney, 5 Fed. Rep. 388; and. Kaeiser v. Illinois Cent. R. Co., ante, 1.