45 F. 513 | U.S. Circuit Court for the District of Eastern Wisconsin | 1891
(after stating the facts as above.) There is here no separable controversy. A decree affecting the corporation defendant is dependent upon and to carry into, effect the judgment upon the controversy touching the ownership of the stock. There can be but one issue and but one decree. The controversy is incapable of separation into parts. Corbin v. Van Brunt, 105 U. S. 576; Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. Rep. 171. To that controversy the defendant company is an indispensable party. To give effect to any decree establishing the complainant’s right to the shares of stock, and to enable him to stand as legal owner of them, recognized as such by the corporation, the company must be decreed to cancel on its books the evidence of their ownership by the representatives of John Van Nortwick, and to issue to the complainant certificates for the shares. Crump v. Thurber, 115 U. S. 56, 5 Sup. Ct. Rep. 1154. Failing a separable controversy, the cause is not removable under the third clause of section 2 of the act of March 8,1887, (24 St. c. 373, p. 552,) as amended by the act of August 13, 1888, (25 St. c. 866, p. 434.) That clause is identical with the second clause of section 2 of the removal act of 1875, (18 St. c. 137, p. 471,) excepting only that the right of removal is restricted to the defendant. The construction of that clause by the supreme court is therefore controlling here. It was determined that it was applicable only to suits embracing separable controversies. Hyde v. Ruble, 104 U. S. 407; Ayres v. Wiswal, 112 U. S. 187, 5 Sup. Ct. Rep. 90; Railroad Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. Rep. 735. There being mo separable controversy, the cause is not removable under that section.
Nor is the cause removable under the second clause of section 2 of-the present removal act; and this for three reasons: (1) All the defendants, parties to the controversy, must be non-residents of the state in which suit is brought. Here the defendant company is a citizen of the state in ivhich suit is brought, and of ivhich complainant is a citizen. (2) All the parties upon the one side of the controversy must unite in the petition for removal. Here the defendant company did not join in the petition. (3) Assuming that the corporation defendant was not a necessary party to the petition, the petition came too late. It is not apparent that the heirs at law are necessary parties. Failing a specific devise of the shares by will, they passed to the executors. No such devise is stated. The complainant, having, however, made them parties, and challenged their right, cannot be heard to say that they have no part in the controversy. The petition was filed alter answer by some of the petitioners, and after expiration of their time to answer, and, as to the others, before such expiration of time, and before answer by them. The answering defendants, failing a timely application for removal, have lost their right. The others compelled to join with them are subjected to their disability. Fletcher v. Hamlet, 116 U. S. 408, 6 Sup. Ct. Rep. 426. The cause will be remanded.
