after making the foregoing statement, delivered-the opinion of the court.
The suit 'was commenced, in the .state court by a citizen *331 and resident of the city, county and State of New York against a corporation, a citizen of the State' of Ohio, and other defendants, jnany of whom were residents and citizens of the State of New York, the value of the matter in dispute, exclusive of interest and costs, exceeding the jurisdictional sum.
The defendant, the Wabash. Railroad Company, a citizen of Ohio, filed its petition and bond in proper form for the removal of the suit into the United States Circuit Court for the Southern-District of New York, on the ground of, separable controversy so far- as it .was concerned, and it was removed accordingly, A motion to remand was made and denied by the Circuit' Court, which held that the controversy was separable, and that the other defendants were'not indispensable or necessaty parties to the complete determihation of that separable controversy.
The issue on the.motion to remand was whether such determination could be, had without the presence of defendants other than .the Wabash Railroad Company, and this was-judicially determined by -the Circuit Court, to which the decision was by law committed.
The application- to this court is for the issue, of the writ of mandamus directing the Circuit Court to reverse'its decision^, although in its nature a judicial act .and within the scope of its jurisdiction and discretion.
But mandamus caimot be issued to compel the court below to decide a matter before it in a particular way or to review its judicial- action had in the exercise of legitimate jurisdiction, nor can the writ be used to perform the office of an appeal or writ of error.
Where the court refuses to take jurisdiction of a case and proceed- to jüdgment therein, when it is its duty to. do so and .there is ño other remedy, mandamus will, lie -unless the authority to issue it has been taken away by statute.
In re Grossmayer, Petitioner,
“In
In re Hohorst, Petitioner,
In Ex parte Wisner, Wisner, a citizen, of the Staté of Michigan, commenced an action at law. in the Circuit Court for the city of St. Louis, State' of Missouri, against Beardsley, a citizen of the State of Louisiana. After service of summons on Beardsley, he filed his petition to remove the action from the state court .into the Circuit Court of the United'States for the Eastern District of Missouri, ‘ on the .ground of diversity of citizenship, with the proper bond, and an order of removal was made by the state ¿hurt, and the transcript of record was filed in the Circuit Court.' Wisner (who had had no choice but to sue in thei state court) at once moved to remand the case, on the ground -that the suit did not raise a controversy- within the jurisdiction of' the Circuit. Court, and that as it appeared on the face of .the record that plaintiff was a. citizen and resident of Michigan, and defendant a citizen and resident of Louisiana, the case was not one within the original jurisdiction of the.. Circuit Court, in accordance with the statute providing that where jurisdiction is founded only on the fact that the action is between citizens of different States, suit shall -be. brought *333 only in the district of the residence of either the plaintiff or .the defendant. The motion to remand was denied, and Wisner applied to this court for a writ of mandamus which was subsequently awarded.
' In the present case the removal was granted and sustained on the ground that there was a controversy between the removing defendant and plaintiff, which could be fully determined as between them without the presence of the other defendants. That being so, the suit might have been brought originally in the Circuit Court against the railroad company as sole defendant.
If the ruling of the Circuit (Court was erroneous, as is contended, but which we do not intimate, it may be reviewed after final decree on appeal or error.
Missouri Pacific Railway Company
v.
Fitzgerald,
Rule discharged; petition dismissed.