Cases advanced under Section 3 of Rule 32 are to be submitted on
printed briefs and arguments after service of notice and brief or
When one of several defendants in a suit on a joint cause of
action in a state court loses his right to remove the action into a
circuit court of the United States by failing to make the
application in time, the right is lost as to all.
This was a motion to dismiss or affirm. The facts which make the
case are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This is a writ of error brought under § 5 of the Act of March 3,
1875, 18 Stat. 470. c. 137, for the review of an order of the
circuit court remanding a case which had been removed from a state
court. It has been advanced under Rule 32, and is now for hearing
on its merits. In submitting the case, the defendants in error
treat the rule as though it required a motion to dismiss or affirm.
Such is not the proper practice. Cases advanced under § 3 of Rule
32 are to be submitted like
Page 116 U. S. 409
motions to dismiss under Rule 6 -- that is to say, on printed
briefs or arguments after service of notice and brief or argument,
as required by § 4, Rule 6.
The facts are these: Hamlet, Bliss & Elliott, citizens of
Alabama, brought suit in the Civil District Court of the Parish of
Orleans, on the 17th of March, 1883, against the commercial firm of
Fletcher, Wesenberg & Co., doing business in New Orleans,
Louisiana, and composed of John F. Fletcher, Thomas O'Conner,
William Wesenberg, and George M. Fletcher. Service of citation was
made on the firm and William Wesenberg through Wesenberg in person,
April 6, 1883. This was good service on the firm, and according to
the laws of Louisiana a judgment in the action would bind Wesenberg
personally, and the assets of the firm and of the other members of
the firm in Louisiana. On the 6th of April, Wesenberg appeared and
filed exceptions to the petition on his own behalf and on behalf of
the firm. These exceptions, which involved the merits of the case,
were sustained in the district court April 17, 1883, but on appeal
to the supreme court, the judgment of the district court was
reversed and the cause remanded for further proceedings. Wesenberg
then filed an answer for himself and for the firm May 22, 1884. On
the 4th of June, 1884, process was issued and served on John F.
Fletcher. The effect of this was to bring Fletcher into the suit so
as to bind him personally by a judgment in the action, as well as
his property in Louisiana. On the seventeenth of June, Fletcher
filed exceptions individually and on behalf of the firm. These
exceptions were referred to the merits, November 28, 1884, and
Fletcher then filed his answer. The case was set down for trial
December 4, 1884, but not being reached, was ordered to be
continued until the next jury term.
A term of the court began on the first Monday in November, 1884,
and it continued until the third Monday in July, 1885. For
convenience, different weeks in the term were set apart for jury
trials. These weeks, occurring at intervals during the term, were
often referred to as jury terms.
On the 5th of February, 1885, Wesenberg and John F. Fletcher
joined in a petition for the removal of the suit to the
Page 116 U. S. 410
Circuit Court of the United States for the Eastern District of
Louisiana on the ground that they were citizens of Tennessee and
the plaintiffs citizens of Alabama, and that the suit involved a
controversy wholly between citizens of different states. When the
case was entered in the circuit court, it was remanded. To reverse
that order, this writ of error was brought.
It is conceded that the suit was not removable when the petition
for removal was filed, unless the service of process on Fletcher on
the 4th of June so changed the character of the litigation as to
make it substantially a new suit begun that day. In our opinion,
such was not the effect of the new process. The suit was begun when
process was served on Wesenberg and the firm. If judgments had been
rendered against the defendants at any time after that, it could
have been enforced against Wesenberg personally and against all the
property of the firm and of the individual partners in Louisiana.
The cause of action is joint. There is no separable controversy in
the case. There can be no removal by the defendants unless they all
join and all are citizens of different states from the plaintiffs.
Confessedly Wesenberg lost his right to a removal by failing to
make the application in time, and as Fletcher cannot take the case
from the state court unless Wesenberg joins with him, it follows
that he is subjected to Wesenberg's disability.
The order to remand is