The filing of separate answers by several defendants, sued
jointly in a state court, on an alleged joint cause of action in
tort, in which each avers that he acted separately on his own
account and not jointly in the acts complained of, does not divide
the suit into separate controversies so as to make it removable
into the Circuit Court of the United States.
Pirie v. Tvedt, 115 U. S. 41,
affirmed and applied.
This writ of error was sued out to review the action of the
circuit court in remanding the cause to the state court, from
whence it had been removed. The case is 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 the Act of March 3, 1875,
18 Stat. 470, c. 137, to reverse an order of the circuit court
remanding a suit which had been removed from the state court. The
suit was brought by Anderson, the defendant in error, a citizen of
Wisconsin, against John Sloane, William D. Sloane, Henry F. Sloane,
Thomas C. Sloane, Walter W. Law, Alexander Wright, and Charles L.
Watson, partners under the name of W. & J. Sloane, all citizens
of New York; John V.
Page 117 U. S. 276
Farwell, Charles B. Farwell, William D. Farwell, and John L.
Harmon, partners under the name of J. V. Farwell & Co.,
citizens of Illinois; Curtis H. Remy, an attorney at law, and a
citizen of Illinois, and Angus Cameron, Joseph W. Losey, and
Charles W. Bunn, partners doing a general law business under the
name of Cameron, Losey & Bunn, citizens of Wisconsin. The
complaint states that in September, 1881, Anderson was a merchant
in good credit, doing business at La Crosse, Wisconsin, and worth
at least $15,000 over his debts; that on the 28th of September he
was indebted to W. & J. Sloane in the sum of $3,378.28, of
which only $363.03 was then due, and to J. V. Farwell & Co. in
the sum of $1,757,08, of which only $439.27 was due; that on that
day the defendants Cameron, Losey & Bunn and Curtis H. Remy, by
the order and direction of W. & J. Sloane, caused a judgment to
be entered against him as by confession in the Circuit Court of La
Crosse County for his entire debt to that firm, and by the order
and direction of J. V. Farwell & Co., another judgment for his
entire debt to that firm, and that each of these judgments was
irregular and void, the court being without jurisdiction in the
premises. The complaint then proceeds as follows:
"That on the 28th day of September, 1881, the said defendants
Cameron, Losey & Bunn, by order and direction of the said
Curtis H. Remy, and by order and direction of the said defendants
W. & J. Sloane and John V. Farwell & Co., wrongfully and
unlawfully issued executions out of said circuit court on said
several judgments for the full amount of damages and costs
aforesaid to the sheriff of La Crosse County, which said
executions, though regular in form so as to protect said sheriff,
were unauthorized and void. That Mark M. Buttles, the then Sheriff
of La Crosse County, on the said 28th day of September, 1881, under
and by virtue of the said executions, which were both delivered to
him at the same time, and under and by virtue of the orders and
directions of the said defendants Cameron, Losey & Bunn, and of
the defendants Curtis H. Remy and W. & J. Sloane and John V.
Farwell & Co., and in the absence of this plaintiff from the
City of La Crosse, he having left this city
Page 117 U. S. 277
at the express request of the said defendant Curtis H. Remy, who
was acting in behalf of said defendants W. & J. Sloane and John
V. Farwell & Co., the said sheriff, without the plaintiff's
consent, levied upon, seized, and took possession of the entire
stock of goods, fixtures, and furniture and store of this
plaintiff, occupied by him under lease, . . . and seized and took
the keys of said store, and turned out, and caused to be removed
and kept out, from said store, the clerks and customers of this
plaintiff, and shut up said store, and stopped all trades and sales
therein for and during the space and time of twenty-five days, to
his damage in the sum of five thousand dollars; the said stock of
goods and fixtures and furniture being then and there worth the sum
of thirty thousand dollars."
Separate answers were filed by Cameron, Losey & Bunn, W.
& J. Sloane, and J. V. Farwell & Co. Each of these answers
was substantially a copy of the others, and the same defenses were
set up in all. Among other things, it was alleged that in making
the levies, the firms of W. & J. Sloane and J. V. Farwell &
Co. acted separately, each on its own account, and not jointly,
"and that there was consequently a misjoinder of parties
defendant." It was therefore pleaded in abatement of the action
that there was a
"misjoinder of parties defendant, inasmuch as the defendants W.
& J. Sloane and the defendants J. V. Farwell & Co. are not
jointly concerned in this matter or jointly liable to the plaintiff
herein."
Each of the firms, however, admitted that Cameron, Losey &
Bunn acted under its authority, and by its direction, in what they
did on its account. After filing these answers, W. & J. Sloane
and J. V. Farwell & Co. united in a petition for the removal of
the suit to the circuit court of the United States upon the
following ground:
"That there exists in said suit a controversy which is wholly
between citizens of different states, to-wit, between the said
plaintiff, a citizen of Wisconsin, and your petitioners, citizens
of the states of New York and Illinois aforesaid, and which can be
fully determined as between them; that the controversy in this
action, and which is stated in the pleadings on
Page 117 U. S. 278
file therein, is a separable one, and can be fully tried and
determined between the said plaintiff and your petitioners without
the presence of their said codefendants above named, or any or
either of them."
The suit was docketed in the circuit court of the United States
on the 1st of June, 1885, and that court remanded it to the state
court on the 3d of June. To reverse the order to that effect, this
writ of error was brought.
We are unable to distinguish this case, in principle, from that
of
Pirie v. Tvedt, 115 U. S. 41, in
which it was held on full consideration that a suit for malicious
prosecution brought by a citizen of Minnesota against citizens of
Minnesota and citizens of Illinois was not removable by the
citizens of Illinois under the second clause of ยง 2 of the act of
1875 on the ground that, as the action was in tort, it was
severable for the purposes of removal. It is true, in that case the
complaint alleged that
"the said defendants, confederating together and with a
malicious and unlawful design had and entertained by them, and each
of them, to injure, oppress, and harass these plaintiffs, and to
break them up in business, wrongfully, maliciously, unlawfully, and
without any reason or provocation or probable cause,"
brought the action against the plaintiffs, but this was in its
legal effect so far as the present inquiry is concerned nothing
more than an allegation that the defendants acted jointly in the
commission of the wrong which had been done. The point decided was
that a joint action in tort was not severable for the purposes of
removal any more than a joint action on contract. We had decided at
the same term, in
Louisville & Nashville Railroad Co. v.
Ide, 114 U. S. 52, and
in
Putnam v. Ingraham, 114 U. S. 57, that
suits on contracts were not separable for the purposes of removal
because separate defenses had been interposed by the several
defendants, and under the state practice, judgments in joint
actions might be given for or against one or more defendants.
Applying this principle to the case then in hand, we said (p.
115 U. S.
43):
"There is here, according to the complaint, but a single cause
of action, and that is the alleged malicious prosecution of the
plaintiffs by all the defendants acting in concert. The cause of
action is several as
Page 117 U. S. 279
well as joint, and the plaintiffs might have sued each defendant
separately, or all jointly. It was for plaintiffs to elect which
course to pursue. They did elect to proceed against all jointly,
and to this the defendants are not permitted to object. The fact
that a judgment in the action may be rendered against a part of the
defendants only does not divide a joint action in tort into
separate parts, any more than it does a joint action on
contract."
In the present case, there is, according to the complaint, but a
single cause of action, and that is the wrongful seizure of the
property of the plaintiff by the united efforts of all the
defendants acting in common.
The claim that W. & J. Sloane and J. V. Farwell & Co.
were acting each for themselves, and not in common, has no effect
on the question of removal. All the defendants concede that
Cameron, Losey & Bunn were acting as well for Sloane as for
Farwell, and if there were in fact two trespasses instead of one,
they were connected with both. Whether this therefore be considered
as a suit for the Sloane trespass or for the Farwell trespass,
Cameron, Losey & Bunn are necessary parties to the relief which
the plaintiff asks, and that is a judgment for damages against all
who were guilty of the wrong of which he complains. They were
parties to both the alleged trespasses, and a judgment is asked
against them as well as the others. Sloane and Farwell cannot,
either separately or jointly, remove the suit as it has been begun,
without taking them along. They are citizens of the same state with
the plaintiff. Consequently, if it be conceded that there are two
separate causes of action, so far as Sloane and Farwell are
concerned, the suit is still not removable, because each cause of
action includes the Wisconsin defendants, and as to them there
cannot be a removal.
The order remanding the suit is
Affirmed.