Hunter v. Conrad

• Decision Date: 12 March 1898
• Citation: 85 F. 803
• Parties: HUNTER v. CONRAD et al.
• Court: U.S. District Court — District of Rhode Island

85 F. 803

HUNTER v. CONRAD et al.

United States Circuit Court, D. Rhode Island.

March 12, 1898

Nathan W. Littlefield, for complainant.

Francis Colwell and Walter H. Barney, for respondents.

BROWN District Judge.

The citizenship and residence of the parties are as follows. The complainant is of New York; the respondent Mrs. Conrad, of Montana; the respondents Wood and Anthony, of Rhode Island. The suit was brought in the state court of Rhode Island. The removal was upon the sole petition of Mrs. Conrad; the Rhode Island respondents neither joining in the petition, nor objecting to the removal. The complainant moves to remand. As there are not on opposite sides of the controversy citizens of the same state, the controversy is 'wholly between citizens of different states. ' But a single controversy is involved. Can a single and inseparable controversy of this character be removed by one of the defendants, a nonresident citizen of another state? The right to remove is claimed under the following language, which appears in the act of August 13 1888 (1 Supp.Rev.St.p. 612):

'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,' etc.

It cannot be denied that the literal terms of the statute cover this case. It is contended, however, that this language applies only to those cases in which there exist two or more controversies. The questions therefore arise whether the mere fact that a case involves two or more controversies in itself affords any substantial or reasonable grounds for granting to one of several defendants a right of removal to a federal court, and, if not, whether congress intended to provide in one section two different and inconsistent methods of dealing with the same subject-matter; requiring in one clause the joinder of all the defendants in order to remove a controversy wholly between citizens of different states, and in the next clause allowing one of several defendants to remove a controversy of the same kind. In Insurance Co. v. Champlin, 21 F. 85, it is said:

'It would be a gross anomaly to construe a statute in such a way as to mean that a controversy which, when joined with another controversy not removable at all, would be sufficient to remove both at the instance of a single defendant, yet should not itself be removable in the same manner when standing alone. Such a construction would make the removability of a suit and the manner of removing it under the second clause depend, not on the character of the removable controversy, but upon its being joined with a controversy not in itself removable at all. It is not credible that any such anomaly should have been intended, and none such should be created by construction.'

This case was followed by Judge Lacombe in Garner v Bank, 66 F. 369, and in Trust Co. v. Mackay, 70 F. 801. In the former case Judge Lacombe refers to the fact that there are many decisions of the supreme court that seem to imply that the clause applies only to cases involving more than one controversy, and says that in these cases, however, there were citizens of the same state on each side of the controversy. An expression of the supreme court in such a case to the effect that there is no jurisdiction because there is no separable controversy is of no value, even as a dictum, upon the question now before us. It is merely saying that there is no controversy in the case wholly between citizens of different states. There are upon each side of these cases citizens of the same state. If a distinct controversy not involving these parties exist in the case, or if the parties can be arranged according to their substantial interests, so that all on one side are citizens of different states from those on the other side, then the requirements of the statute are met; otherwise the court has no jurisdiction, because, even after rearrangement according to interest, or separation of the controversies, the original difficulty still exists. But these expressions of the supreme court do not warrant us in holding that a controversy which may be removed, carrying with it the impeding burden of an otherwise irremovable controversy, cannot be removed when unburdened with this impediment. The controversy before us presents originally the same arrangement of parties that is a reason for removal when it has been effected after rearrangement of parties and separation of controversies. The fact that a case contains two controversies is of no value as itself furnishing substantial grounds for federal jurisdiction. The separation...