Patchin v. Hunter

• Decision Date: 19 March 1889
• Citation: 38 F. 51
• Parties: PATCHIN v. HUNTER et al.
• Court: U.S. District Court — Eastern District of Wisconsin

38 F. 51

PATCHIN v. HUNTER et al.

United States Circuit Court, E.D. Wisconsin.

March 19, 1889

Geo. P Miller, for plaintiff

W. H Webster, for defendant Parks

Before GRESHAM and JENKINS, JJ.

JENKINS J.

The plaintiff, a citizen of Wisconsin, brought suit in the circuit court of Waupacca county, Wis., against the defendant Hunter, a citizen of, and resident within the Eastern district of Wisconsin, and the defendant Parks, a citizen of the state of Michigan, to recover the amount of a promissory note for $3,200, alleged to have been made by the defendant as copartners under the firm name of Parks & Hunter. The record discloses that process was served on Hunter March 29, 1886, and on Parks October 12, 1886; the latter defendant duly pleading to the action denying the alleged copartnership and the execution by him of the note declared upon. The defendant Hunter made default. On the 4th of January, 1887, the defendant Parks presented his petition in the state court for the removal of the suit to this court, alleging a separable controversy between himself and the plaintiff. On January 20, 1887, the state court, by order, removed the suit into this court where the record was docketed on the 22d day of April, 1887. The plaintiff now moves to remand the cause for want of jurisdiction in this court.

At the hearing there was conflict touching the fact of service of process upon the defendant Hunter; he denying service. Jurisdiction here does not hinge upon the fact of such service. This decision proceeds upon the postulate that, as claimed by the defendant, no process was served upon Hunter, the resident defendant.

The cause of action is joint. In such case there can be no separable controversy. Separate answers tendering separate issues interposed by defendants sued jointly do not create separable controversies. Railroad Co. v. Ide, 114 U.S. 52, 5 S.Ct. 735; Railroad Co. v. Wilson, 114 U.S. 60, 5 S.Ct. 738; Starin v. New York, 115 U.S 248, 6 S.Ct. 28. At common law there could be no recovery against joint debtors until they were all, if living, summoned; or those not possible to be summoned were outlawed. To facilitate proceedings against joint debtors, the statute was enacted which provides that when process is served upon one or more, but not all, of the defendants prosecuted jointly, the plaintiff may proceed against those served, and, upon recovery, may enter judgment in form against all jointly indebted, enforceable against the joint property of all, and the separate property of the defendant served. Rev. St. Wis. Sec. 2884. In such case provision is also made whereby the defendants not served may be subsequently summoned, and bound by the judgment. Rev. St. Wis. Secs. 2795-2798. In Putnam v. Ingraham, 114 U.S. 57, 5 S.Ct. 746, it was ruled that an action against three defendants sued jointly, one of whom was a citizen of the same state with the plaintiff, could not be removed into the federal courts under the second clause of the second section of the act of March 3, 1875. There the two non-resident defendants had answered, denying joint liability; the resident defendant making default. The court, however, declared that a separate controversy is not introduced into the case by separate defenses to the same cause of action; that the default of the resident defendant was unimportant, the suit being still on joint causes of action, and the plaintiff was entitled, if to any...