Gates Iron Works v. James E. Pepper & Co.
| Decision Date | 13 November 1899 |
| Citation | 98 F. 449 |
| Court | United States Circuit Court, District of Kentucky |
| Parties | GATES IRON Works v. JAMES E. PEPPER & co. et. al. |
Geo. S Shanklin, for complainant.
Pirtle & Trabue, Falconer & Falconer, and John J. McHenry, for defendants Harrisburg Trust Co. and R. G. Cox.
The plaintiff, the Gates Iron Works, an Illinois corporation brought this action in the Fayette circuit court in February 1899, whereby it sought judgment against James E. Pepper & Co., a Kentucky corporation, for $3,060.20, and for the enforcement of a mechanic's lien which it asserted to exist upon certain real estate described in the petition. To this suit Houston, Stanwood & Gamble, a firm composed of citizens of Ohio, were made parties upon the ground that they also claimed a mechanic's lien upon the same real estate to secure a debt for $1,143.30. Thomas A. Combs (subsequently changed to the Combs Lumber Company, a co-partnership made up of citizens of Kentucky) was also made a party, upon the allegation that he claimed a mechanic's lien upon the same real estate to secure his debt for $2,070. S. C. Saunier, a citizen of Kentucky, was also made a defendant, because it was alleged he claimed a mechanic's lien upon the same property to secure a debt of $53.86. Subsequently Houston, Stanwood & Gamble filed their answer, which was made a cross petition against the other parties to the suit. In it they formally set up their claim to a mechanic's lien upon said real estate to secure their demand above described. S. C. Saunier also filed a similar pleading, for a similar purpose, except that only James E. Pepper & Co. was made a defendant to his cross petition. A fourth controversy arose by the filing by the Combs Lumber Company of their counterclaim and cross petition against the other defendants to the suit, in which their lien was also asserted and sought to be enforced against the said real estate for $2,070. A fifth controversy arose in the action when the corporation of James E. Pepper & Co. filed its answer and cross petition, to which it not only made the other parties to the suit defendants, but also, for the first time, introduced as a defendant the Harrisburg Trust Company. The pleading thus filed by James E. Pepper & Co. not only denied the validity of the claim of the Gates Iron Works, but sought to have the deed which, after the creation of the mechanic's liens thereon, it made to R. G. Cox for the land described in the petition, canceled upon the ground of fraud, or, failing in that, it prayed that the boundaries of the said land might be corrected. It also set up the fact that there had been a mortgage upon other property executed by it to the Harrisburg Trust Company, as trustee, two years anterior to the creation of the mechanics' liens, to secure the payment of $150,000 in bonds, which were now held by divers persons, and that the terms of the mortgage were such that it embraced the real estate described in the pleadings, though acquired after the mortgage was made.
This being the state of the pleadings, on the 19th of June last, R. G. Cox, a citizen of Pennsylvania, without otherwise appearing in the action, filed his separate petition for the removal of the cause to this court on the sole ground, as alleged therein, that he is one of the defendants in a suit of a civil nature in which the matter in dispute exceeds $2,000, exclusive of interest and costs, and that the controversy is between citizens of different states. Thereupon he sets out in the citizenship of the various parties, and avers that the controversy in this suit is between citizens and residents of different states, and that the petitioner desires to remove this suit before the trial thereof into the circuit court of the United States. On the same day the Harrisburg Trust Company, also a citizen of Pennsylvania, without otherwise appearing in the action, filed a precisely similar petition; and, both of them having executed bond, the case was removed to this court, and the plaintiff, the Gates Iron Works, has moved to remand it to the state court.
If a proper construction of these petitions limits the claim of right to remove to mere diverse citizenship, neither of the petitioners could rightfully remove the case, because some of their co-defendants, who are necessary and not merely formal parties...
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