Hax v. Caspar

• Decision Date: 06 May 1887
• Docket Number: 2086.
• Citation: 31 F. 499
• Parties: HAX and others v. CASPAR and others. (No. 2,086.)
• Court: U.S. District Court — District of Colorado

31 F. 499

HAX and others v. CASPAR and others. (No. 2,086.)

No. 2086.

United States Circuit Court, D. Colorado.

May 6, 1887

O. B Liddell, for plaintiffs.

J. A Bentley, for defendants.

BREWER J., (orally.)

In case 2,086 there is a motion to remand which presents something of an interesting question. The facts are these: There are three plaintiffs and three defendants. One of the defendants, who seeks the removal, is a citizen of the state of Wisconsin. The other defendants, and one or two of the plaintiffs, are citizens of Colorado. This defendant seeks a removal on the ground of a separable controversy between himself and plaintiffs. One of the defendants, Catherine Caspar, executed some notes and a mortgage on real estate in this city to the plaintiffs. A suit was instituted to foreclose that mortgage making that single defendant party defendant. Pending those foreclosure proceedings, one of the other defendants obtained a sheriff's deed on an execution sale for part of the mortgaged property, and thereafter conveyed this property thus purchased to the other defendant, the citizen of Wisconsin. Now, this complaint is filed, setting forth the fact of that foreclosure proceeding; that one defendant had obtained title pending those proceedings, and transferred it to the defendant in Wisconsin; alleging that that transfer was without consideration; and that the defendant in Wisconsin held the legal title in trust for the other two defendants, and praying a foreclosure as against all. It also alleges that the defendant, who first obtained the title, put upon the property a frame building of the value of $300, and seeks an injunction to prevent its removal. Service was made on all three of the defendants. The mortgagor and the party who took the title in the first instance have each filed disclaimers and demurrers separately, in the one pleading declaring that they have no interest, and by the other that plaintiffs have no cause of action. The Wisconsin defendant answers, alleging his title, and that it was a bona fide purchase, and now insists that there is the one separable controversy between him and the plaintiffs, and that he is a citizen of one state, and they all are citizens of other states. Waiving the question as to whether this is a case where technically a disclaimer is proper, I assume that the effect of the disclaimer is a confession of no interest,-- a putting of one's self outside of the case, as having no controversy with the plaintiffs; and it is true that there remains for trial but the one controversy between the plaintiffs and this one defendant in Wisconsin. But recent decisions of the supreme court have materially limited what seemed to be the import of the rule in Barney v. Latham, 103 U.S. 205, and, in effect, say that the removal does not depend upon the question of what issue remains to be tried, but is to be determined by the nature of the cause of action presented in the complaint. If but one cause of action is presented, involving many defendants, the fact that these defendants have each separate defenses does not make separable controversies. The fact that one of them defaults, and so passes out of the controversy, does not leave a separable controversy as to the other remaining and contesting defendant.

The cases to which I refer are, first, Railroad Co. v. Ide, 114 U.S. 52, 5 S.Ct. 735; Putnam v. Ingraham, 114 U.S. 57, 5 S.Ct. 746. In the first case the court say:

'The filing of separate answers, tendering separate issues for trial, by several defendants sued jointly in a state court, on a joint cause of action, does not divide the suit into separate controversies, so as to make it removable into the circuit court of

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