98 F. 449 | U.S. Circuit Court for the District of Kentucky | 1899
The plaintiff, the Gates Iron Works, an Illinois corporation, brought this action in the Fayette circuit court in February, 1899, whereby it sought judgment against James E. Pepper & Co., a Kentucky corporation, for $3,080.20, and for the enforcement of a mechanic’s lien which it asserted to exist upon certain real estate described in the petition. To this suit Houston, Stamvood & Gamble, a firm composed of citizens of Ohio, were made parties upon the ground that they also claimed a mechanic’s lien upon the same real estate to secure a debt for $1,143.30. Thomas A. Combs (subsequently changed to the Combs Lumber Company, a co-partnership made up of citizens of Kentucky) was also made a party, upon the allegation that he claimed a mechanic’s lien upon the same real estate to secure his debt for $2,070. S. C. Saunier, a citizen of Kentucky, was also made a defendant, because it was alleged he claimed a mechanic’s lien upon the same property to secure a debt of $53.86. Subsequently Houston, Stanwood & Gamble filed their answer, which was made a cross petition against the other
This being the state of the pleadings, on the 19th of June last, R. G-. Cox, a citizen of Pennsylvania, without otherwise appearing in the action, filed his separate petition for the removal of the cause to this court on the sole ground, as alleged therein, that he is one of the defendants in a suit of a civil nature in which the matter in dispute exceeds $2,000, exclusive of interest and costs, and that the controversy is between citizens of different states. Thereupon he sets out the citizenship of the various parties, and avers that the controversy in this suit is between citizens and residents of different states, and that the petitioner desires to remove this suit before the trial thereof into the circuit court of the United States. On the same day the Harrisburg Trust Company, also a citizen of Pennsylvania, without otherwise appearing in the action, filed a precisely similar petition; and, both of them having executed bond, the case was removed to this court, and the plaintiff, the Gates Iron Works, has moved to remand it to the state court.
If a proper construction of these petitions limits the claim of right to remove to mere diverse citizenship, neither of the petitioners could rightfully remove the case, because some of their co-defendants, who are necessary and not merely formal parties to the litigation, are averred to be citizens of Kentucky. If nothing else exist, the motion to remand must at once be sustained upon that ground. Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823; Winchester v. Lond, 108 U. S. 130, 2 Sup. Ct. 311, 27 L. Ed. 677. Hut it is insisted upon the part of the Harrisburg Trust Company and R. G. Cox that the record, as distinguished from their petitions, shows that there is a
The court is also strongly inclined to doubt whether the amount involved is sufficiently stated in the petitions, as between either of the petitioners and any other parly to the suit, because, as before stated, neither of the petitioners slates that the matter in dispute between the petitioner and any plaintiff or anybody else exceeds the value of $2,000. The court is, indeed, somewhat inclined to put its decision upon the two grounds indicated above; but, waiving each of them, and assuming that the petitions are good in both of these respects, the court still cannot find that there is in the case such a separable controversy in respect to either of the petitioners, or in which they are actually interested, or to which their petitions can properly apply, as between them and a plaintiff or cross plaintiff, or in respect to both of them, as citizens of Pennsylvania., which can be fully settled, and complete relief afforded, without the presence of the original defendants as parties, or, indeed, without the presence, mutatis mutandis, of a citizen of the same state of Pennsylvania in opposing interests. These elements are all necessary in order that there may be a removal in case of a separable conlro-