A party in a cause pending in a state court who petitions for
its removal to a federal court, or who consents to its removal,
cannot after removal object to it as not asked for in time.
Page 156 U. S. 336
This was an action originally brought March 16, 1887, by John A.
Smiley, a citizen of Nebraska, against William J. Connell, also a
citizen of that state, in the district court of Douglas County,
Nebraska, to quiet title to eighty acres of land. The petition
alleged that the plaintiff made a deed of the tract in which a
proposed corporation was named as grantee, which was deposited in
escrow to be delivered when the corporation was fully organized and
certain stock issued to plaintiff; that the corporate enterprise
was abandoned, but the deed, contrary to intention, and without
plaintiff's knowledge or consent, was placed on record; that one
Frederick Lay recovered judgment against the corporation, and the
land was sold on execution issued thereon, and bid in by Lay's
attorneys, one of whom was Connell, and conveyed by the sheriff to
them, and by Connell's associate to him; that plaintiff was in
ignorance of this until long after; that the corporation had
reconveyed, and that Lay had assigned the judgment, and quitclaimed
any interest thereunder to him. The specific prayer was that the
court might decree
"that said Connell took no interest in said land by reason of
said sale upon execution issued on said judgment; that the said
sheriff's deeds be set aside, and the title to said land be quieted
in plaintiff."
On the 18th of June, 1887, a motion was filed in the cause by W.
J. Connell, as attorney for Herbert M. Tenney, which read:
"And now comes Herbert M. Tenney, and hereby represents that he
has, and at the time of the commencement of this action did have,
an interest in the property in controversy herein, and he therefore
asks to be made a party defendant, and so allowed to file an answer
herein and defend his said interest."
The record shows on the same day an order in these words:
"On motion and for good cause shown, it is ordered that F. H.
Lay be, and he hereby is, made a party defendant in this action,
and is allowed to file an answer herein within twenty days."
The answer of defendant Connell was
Page 156 U. S. 337
filed July 7, 1887, setting forth, among other things,
"that, prior to commencement of this action, a portion of said
premises was conveyed by deed to Herbert M. Tenney and F. H. Lay,
who now claim to be the owners of the premises so conveyed."
On the same day, Lay and Tenney, by their attorney, Connell,
filed their petition and bond for removal to the Circuit Court of
the United States for the District of Nebraska. The petition
stated:
"Your petitioners, Frederick H. Lay and Herbert M. Tenney,
defendants in the above-entitled suit, respectfully show to the
court that at this time, and at the commencement of this action,
and for a long time prior thereto, the said Frederick H. Lay was
and is a citizen of the State of Colorado, and the said Herbert M.
Tenney was and is a citizen of the State of Ohio. Your petitioners
further show that the said John A. Smiley, plaintiff, is a citizen
of the State of Nebraska, and at the time of the commencement of
said suit was a citizen of the State of Nebraska, and further say
that the amount in dispute in said action exceeds the sum of
$2,000, exclusive of costs, and in fact exceeds the sum of $10,000,
exclusive of costs, and that each of said parties own and claim
separate and distinct portions of said land."
Attached was the affidavit of Connell
"that he is the attorney for the above-named defendants,
Frederick H. Lay and Herbert M. Tenney, and that the facts
contained in the foregoing petition are true."
The bond was signed by Lay and Tenney by their attorney,
Connell. Thereupon, August 8, 1887, an order for removal was
entered which concluded, "[a]nd, by consent of parties, the said
cause is removed as to said defendant Connell, as well as to the
other defendants." The plaintiff thereupon filed in the circuit
court his petition for leave to file an amended and supplemental
bill, making Tenney and Lay defendants, which leave was granted,
and an amended and supplemental bill filed accordingly against
Connell, Tenney, and Lay. This bill averred that, after the filing
of the original bill,
"the defendant Connell signed and acknowledged two deeds
purporting to convey to each of said defendants Lay and Tenney a
portion of your orator's said land, and caused the said deeds to be
recorded in
Page 156 U. S. 338
the office of the county clerk of said county. Said deeds bear a
date previous to the filing of your orator's said bill."
That thereafter the defendants Tenney and Lay, by their
attorney, the defendant Connell, applied to said district court to
be admitted as defendants in the suit, and on the 18th of June,
1887, of the May term, were by said court so admitted. It was
further alleged that on July 7, 1887, actions of ejectment had been
commenced against plaintiff by Lay, Tenney, and Connell severally
to obtain possession of portions of the land in dispute.
February 15, 1888, Tenney answered the amended bill of
complaint, stating, among other things, that he
"admits that said defendant Connell, by deed to this defendant
and to said defendant Lay, conveyed the portions of said land in
said bill of complaint described as having been so conveyed, but
this defendant denies that said deeds were made after the filing of
said bill, but, on the contrary, the defendant charges that said
deeds were made, executed, and acknowledged on the day which they
bear date."
On the same day, the answer of Connell to the amended bill was
filed, and on February 22d, the answer of Lay, containing similar
allegations. Replications were filed to these answers, and the
cause was subsequently heard, and a decree rendered in favor of the
complainant, with costs, it being stated at the foot of the
decree:
"To the jurisdiction of the court to render a decree herein the
said respondents object, and to which several findings and each
thereof, and to which said decree, the said respondents except, and
pray an appeal, which is hereby allowed,"
etc. An appeal was subsequently prosecuted to this Court.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
On behalf of appellants, briefs are submitted for appellant
Connell only, and his contention is that the decree should be
Page 156 U. S. 339
reversed and the cause remanded with a direction to remand it to
the state court, because improperly removed to the circuit
court.
The grounds urged are that Tenney and Lay were interveners,
deriving title from Connell, the original defendant; that they were
purchasers
pendente lite, because their deeds were not
delivered or were not recorded prior to the commencement of the
suit; that they therefore were not entitled to remove, because
Connell was not; that the application was made too late, and that
there was no separable controversy as to petitioners capable of
removal.
Whether the petition for removal was filed in time it is
immaterial to consider, as neither Tenney nor Lay, who petitioned
for removal, nor Connell, who consented as a party and participated
as their attorney, can now raise the objection.
Ayers v.
Watson, 113 U. S. 594;
Martin v. Baltimore & Ohio Railroad, 151 U.
S. 673.
By the second section of the Act of March 3, 1887, as corrected
by the Act of August 13, 1888, it was provided:
"And when in any suit mentioned in this section there shall be a
controversy which is wholly between citizens of different states,
and which can be fully determined as between them, then either one
or more of the defendants actually interested in such controversy
may remove said suit into the Circuit Court of the United States
for the proper district,"
25 Stat. 433, c. 866, and by the fifth section of the Act of
March 3, 1875,
"that if, in any suit commenced in a circuit court or removed
from a state court to a circuit court of the United States, it
shall appear to the satisfaction of said circuit court at any time
after such suit has been brought or removed thereto, that such suit
does not really and substantially involve a dispute or controversy
properly within the jurisdiction of said circuit court, or that the
parties to said suit have been improperly or collusively made or
joined, either as plaintiffs or defendants, for the purpose of
creating a case cognizable or removable under this act, the said
circuit court shall proceed no further therein, but shall dismiss
the suit or remand it to the court from which it was removed as
justice may require,
Page 156 U. S. 340
and shall make such order as to costs as shall be just."
18 Stat. 470, 472.
And since,
"on every writ of error or appeal, the first and fundamental
question is that of jurisdiction first of this Court and then of
the court from which the record comes, this question the court is
bound to ask and answer for itself, even when not otherwise
suggested, and without respect to the relation of the parties to
it."
Mansfield, Coldwater &c. Railway v. Swan,
111 U. S. 379,
111 U. S.
382.
If plaintiff had brought his suit in the state court against
Tenney or Lay alone in respect of the particular parcel of land
claimed by either, and, on proper petition, the defendant had
removed the case to the circuit court, where it had thereupon gone
to decree against him, he could not have procured a reversal on the
ground of want of jurisdiction of the circuit court unless the
record had disclosed that Connell was an indispensable party, and
Equity Rule 47 inapplicable, in which case this Court might have
reversed the decree and directed a dismissal of the suit.
As remarked in
Louisville & Nashville Railroad v.
Ide, 114 U. S. 52,
114 U. S.
56:
"Separate answers by the several defendants, sued on joint
causes of action, may present different questions for
determination, but they do not necessarily divide the suit into
separate controversies. A defendant has no right to say that an
action shall be several which a plaintiff elects to make joint.
Smith v. Rines, 2 Sumner 348. A separate defense may
defeat a joint recovery, but it cannot deprive a plaintiff of his
right to prosecute his own suit to final determination in his own
way. The cause of action is the subject matter of the controversy,
and that is, for all the purposes of the suit, whatever the
plaintiff declares it to be in his pleadings."
But where a plaintiff has brought suit against a sole defendant,
and others, intervening, claim several interests in the subject
matter, involving separate defenses as to such interests, separable
controversies might be held to exist as to them, although the
developments in the after progress of the case might show they were
not such.
Plaintiff brought his suit seeking relief as against Connell
Page 156 U. S. 341
alone. Tenney and Lay intervened, claiming to be owners of
distinct portions of the tract, and removed the suit on the ground
that the controversy as to each of them was separable, and
according to
Barney v. Latham, 103 U.
S. 205, and
Brooks v. Clark, 119 U.
S. 502,
119 U. S. 512,
the whole case was removed, the record here adding that the removal
as to Connell was "by consent of parties." It is now said there was
no separable controversy, because the controversy indicated could
not be fully determined as between Tenney and Lay, or either of
them, and the plaintiff without the presence of Connell. This,
however, if so, did not appear at the time of the removal, and
whether it did afterwards in such wise that it became the duty of
the circuit court to remand the cause, because not really and
substantially involving a dispute or controversy not properly
within its jurisdiction, is determinable on other
considerations.
Appellants do not deny that the petition for removal was
presented in good faith, and although it left much to be desired in
the way of fullness and accuracy, it set up a separable
controversy, which might have involved the defense of
bona
fide purchase for value without notice, and apparently could
have been fully determined as between them and the plaintiff, even
in respect of the proceedings on execution, in the absence of
Connell, who cannot be allowed to say that his claim to the
remaining portion of the land would have been legally affected by
such determination. The question before us is therefore whether it
appeared on the hearing that no such separable controversy really
and substantially existed, and that the circuit court erred in not
remanding the case. The cause was heard upon the merits. The record
does not purport to contain all the evidence, and most of the
depositions and the exhibits are omitted in printing by designation
of appellant under Rule 10. There is evidence tending to show that
Connell conveyed some twenty acres to Lay at or about the time of a
settlement between them, but the deeds to Lay and to Tenney do not
appear. Whether, as matter of fact, Tenney and Lay were purchasers
pendente lite, or the controversy as to them was not
separable, is not so disclosed as to compel the
Page 156 U. S. 342
reversal of the decree at the instance of appellants, and in
spite of the position they occupied to the contrary. It is
suggested that the principles in relation to separable
controversies were not so well understood in 1887 as at this date,
and except for that, appellants would not have attempted to remove
the cause; but the petition, though imperfect, was sufficient to
accomplish the result of forcing appellee into the circuit court,
and we find ourselves at liberty to decline to deprive him of his
decree on the ground that the cause was not rightly
transferred.
Decree affirmed.
