Tilley v. Cobb

• Decision Date: 25 January 1894
• Docket Number: No. 8400.,8400.
• Citation: 56 Minn. 295
• Parties: JOHN J. TILLEY <I>vs.</I> NELSON COBB <I>et al.</I>
• Court: Minnesota Supreme Court

56 Minn. 295

JOHN J. TILLEY vs. NELSON COBB et al.

No. 8400.

Supreme Court of Minnesota.

Argued by respondent, submitted on brief by appellant, January 2, 1894.

Affirmed January 25, 1894.

Appeal by defendants, Nelson Cobb, Albert W. Sexton, Deming W. Sexton, Robert A. Beckwith and Albert B. Clampet, from a judgment of the District Court of Hennepin County, Thomas Canty, J., entered February 15, 1893.

The plaintiff, John J. Tilley, brought this action October 2, 1891, under 1878 G. S. ch. 75, § 2, to determine the adverse claims of the five defendants above named and of twenty five others named and of all other persons unknown, to block nine (9) in Oakland Addition to

Minneapolis. All the defendants disclaimed except the five above named. They made and filed a petition and bond for the removal of the cause to the Federal Circuit Court for the District of Minnesota, Fourth Division, on the ground that they were not residents of this state, that Cobb resided in Missouri, Clampet in Illinois and the two Sextons and Beckwith in Connecticut, and that the plaintiff was a subject of the Queen of Great Britain and a resident of Ontario in the Dominion of Canada. They stated that they were owners in severalty of portions of the block and claimed adversely to the plaintiff and that the value of Clampet's interest exceeded $3,000 and the value of the interest of all the petitioning defendants exceeded $6,000, that all the other defendants named had disclaimed and the controversy was wholly between the plaintiff and the petitioners, that twenty days had not expired since the service of the summons on them. The District Court thereupon made an order November 25, 1891, that the action be removed to the Federal Court as prayed and that a certified copy of the record and files therein be transmitted to that court. This was done and the five defendants filed in that court their joint answer denying plaintiff's title and asserting title to various lots in the block to be in themselves. The facts stated in the answer were those recited in Bausman v. Faue, 45 Minn. 412. Defendants claimed, under the foreclosure of the mortgage to French, while the plaintiff claimed under Galushe's foreclosure of the mortgage to Hall and the estoppel by subsequent conduct. On plaintiff's motion, the Circuit Court on October 10, 1892, remanded the action to the state court, saying:

Although there is a separate controversy between the alien and the petitioning defendants, the right of removal cannot be claimed under the 3rd clause of § 2, 25 U. S. Stat, ch. 866, p. 434, for the reason that a removal on the ground of a separable controversy only applies to controversies wholly between citizens of different states. One of the parties here is an alien. Neither does the right exist under the 2nd clause, because all of the...