But the plaintiffs in error insist there was such a separate
controversy, and that they were entitled to a removal under the
rulings in
Barney v. Latham, 103 U.
S. 205. To this we cannot agree. As has already been
seen, the contest, when begun, was joint, and presented but one
issue for trial. To entitle a party to a removal under the second
clause of the second section of the act, there must exist in the
suit a separate and distinct cause of action on which a separate
and distinct suit might properly have been brought and complete
relief afforded as to such cause of action, with all the parties on
one side of that controversy citizens of different states from
those on the other.
Hyde v. Ruble, 104 U.
S. 407. To say the least, the case must be one capable
of separation into parts so that in one of the parts a controversy
will be presented with citizens of one or
Page 106 U. S. 195
more states on one side and citizens of other states on the
other, which can be fully determined without the presence of any of
the other parties to the suit as it has been begun. Such is not
this case. As was said by the Supreme Court of Michigan in this
very contest, when an application was made for a mandamus to compel
the circuit court to set aside an order consolidating the two
appeals,
"the probate of every will, whether in the original or appellate
tribunal, must always be single and complete in one hearing. It
would be absurd to have such proceedings severed so that the will
might be held good as to one class of contestants and bad as to
another. No matter how many different persons may appeal, they can
only raise one issue, and there can be but one trial of that issue,
which is to determine the question of will or no will. . . . There
can be no such thing as a determination of testacy or intestacy
which binds one appellant and does not bind the rest. The
controversy includes all interests that the law recognizes for any
purpose and binds all."
For these reasons it was held that all of the several claims of
appeal were merely appearances in a single and indivisible
proceeding, which could not be severed for any purpose. The
mandamus asked for was refused, the court remarking that the order
for consolidation was entirely unnecessary, and undoubtedly made
out of abundant caution. This seems to be conclusive of the
question now under consideration. The contest was joint when it was
begun. It was joint after the two appeals were taken, and is not
separable for any purpose. Although in form separate issues were
joined in the appeals, in reality they were but one, and were
capable of but one trial.
The order remanding the cause is
Affirmed.