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Opinion of the Court.

formance, marked by different scenes; and the question now occurs, whether the several matters charged are so distinct and unconnected as to render the joining of them in one bill a ground of demurrer.” The court then reviews the leading cases on the subject, and says that the principle to be deduced from them is, “that a bill against several persons must relate to matters of the same nature and having a connection with each other, and in which all the defendants are more or less concerned, though their rights in respect to the general subject of the case may be distinct;” that the general right claimed by the bill was a due application of the capital of the company to the payment of the judgments of the plaintiffs ; that the subject of the bill and of the relief, and the only matter in litigation, was the fraud charged in the creation, management and disposition of the capital of the company; that in that charge all the defendants were implicated, though in different degrees and proportions; and that the case fell within the reach of the principle stated, and the demurrer could not be sustained.

This ruling of Chancellor Kent was considered, recognized and approved by the Court of Errors of New York, without a dissenting voice in Fellows v. Fellows, 4 Cowen, 682. See, also, New York & New Haven Railroad v. Schuyler, 17 N. Y. 192, and 34 N. Y. 30.

The principle above stated has been applied by this court, in considering the question of removal, in cases like the present.

In Ayers v. Chicago, 101 U. S. 184, a bill was filed in a state court of Illinois, by the city of Chicago against citizens of Illinois, to enforce a deed of trust. A citizen of Alabama, having a judgment against one of the defendants, and claiming a lien on the property covered by the deed of trust, was admitted as a party defendant to the suit, and filed a cross-bill to enforce such lien, and removed the suit into the Federal Court, on the ground that in the original suit there was a controversy wholly between him and the original plaintiff, and that in the cross-suit the controversy was wholly between citizens of different States. The cause was remanded, and on appeal this court affirmed that decision, saying that the original bill and the cross-bill constituted one suit; that the intervener

Opinion of the Court.

was allowed to take part in a controversy between the city and the debtor; that he had no dispute with the debtor, and none separably with the city ; that he and the debtor had a controversy with the city as to its lien on the property; that the debtor, who was on the same side of the controversy with him, was a citizen of the same State with the city; and that, such being the case, the suit was not removable.

In Fidelity Ins. Co. v. Huntington, 117 U. S. 280, it was held that a creditors' bill to subject incumbered property to the payment of the judgment of the creditor, by selling it and distributing its proceeds among lien-holders according to priority, created no separate controversy as to the separate lienholders, parties defendant, within the meaning of the removal act, although their respective defences might be separate. The court said: “The suit as brought by Huntington is a creditor's bill to subject incumbered property to the payment of his judgment, by a sale and distribution of the proceeds among lien-holders according to their respective priorities. There is but a single cause of action, and that is the equitable execution of a judgment against the property of the judgment debtor. This cause of action is not divisible. Each of the defendants may have a separate defence to the action, but we have held many times that separate defences do not create separate controversies within the meaning of the removal act. Louisville & Nashville Railroad v. Ide, 114 U. S. 52; Putnam v. Ingraham, 114 U. S. 57; Pirie v. Tvedt, 115 U. S. 41; Starin v. New York, 115 U. S. 248; and Sloane v. Anderson, 117 U. S. 275. The judgment sought against the Fidelity Company is incident to the main purpose of the suit; and the fact that this incident relates alone to this company does not separate this part of the controversy from the rest of the action. What Huntington wants is not partial relief, settling his rights in the property as against the Fidelity Company alone, but a complete decree, which will give him a sale of the entire property, free of all incumbrances, and a division of the proceeds as the adjusted equities of each and all the parties shall require. The answer of this company shows the questions that will arise under this branch of the one controversy,

Opinion of the Court.

but it does not create another controversy. The remedy which Huntington seeks requires the presence of all the defendants, and the settlement, not of one only, but of all the branches of the case."

To the cases above cited may be added Plymouth Mining Co. v. Amador Canal Co., 118 U. S. 264; Little v. Giles, 118 U. S. 596, 601; East Tennessee Railroad v. Grayson, 119 U. S. 240; Brooks v. Clark, 119 U. S. 502, 511; Laidly v. Huntington, 121 U.S. 179; Peninsula Iron Co. v. Stone, 121 U. S. 631; Thorn Wire Hedge Co. v. Fuller, 122 U. S. 535; and Young v. Parker's Administrator, ante, 267. The transcript of the record from the state court in the present case was filed in the Circuit Court of the United States on the 11th of April, 1883. The decisions of this court above cited were all but one of them made at and after October term, 1884.

There is nothing in the record before us which shows that the question of the removability of the present case, on the petition for removal which was filed, was raised in the Circuit Court, either at the time the transcript from the state court was presented to be filed, or afterwards by a motion to remand, except what may be inferred from a statement in the record in the Graves case, at the conclusion of the testimony of a witness taken April 6, 1883, that the counsel for the plaintiff stated that he had been before Judge Drummond, in the United States Circuit Court for the Northern District of Illinois, and the judge had taken jurisdiction of the cause under the petition for removal by the First National Bank of Chicago. We find reported, however, the case of Corbin v. Boies, 18 Fed. Rep. 3, the present case, where Judge Drummond, in an opinion which appears to have been given on an application to order the transcript from the state court to be filed in the Circuit Court and the case to be docketed in the latter court, held that there was in the case a controversy which was wholly between the plaintiff and the First National Bank of Chicago, namely, a controversy as to whether the judgment in favor of that bank was a valid judgment as against the limited partnership, and the plaintiff as one of its creditors; and that the bank was not interested in any contro

Opinion of the Court.

versy which the plaintiff might have with other creditors of the firm. But, as already shown, this view was erroneous.

Under the provision of section 5 of the act of March 3, 1875, 18 Stat. 472, that if, in any suit removed from a state court to a Circuit Court of the United States, it shall appear to the satisfaction of said Circuit Court, at any time after such suit has been removed thereto, that it does not really and substantially involve a dispute or controversy properly within the jurisdiction of said Circuit Court, it shall proceed no further therein, but shall remand the suit to the court from which it was removed, as justice may require, this court has held that when it appears to this court that the case is one of which, under that provision, the Circuit Court should not have taken jurisdiction, it is the duty of this court to reverse any judgment given below, and remand the cause with costs against the party who wrongfully invoked the jurisdiction of the Circuit Court. Williams v. Nottawa, 104 U. S. 209. This rule has been recognized by this court to the extent even of taking notice of the want of jurisdiction in the Circuit Court, although the point has not been formally raised in that court or in this court, in Turner v. Farmers' Loan & Trust Co., 106 U. S. 552, 555; Mansfield &c. Railroad v. Swan, 111 U. S. 379, 386; Farmington v. Pillsbury, 114 U. S. 138, 144; and King Bridge Co. v. Otoe Co., 120 U. S. 225, 226.

In Stevens v. Nichols, 130 U. S. 230, it was held that if a proper diversity of citizenship does not appear by the record to have existed both at the commencement of the suit and at the time of filing the petition for removal, this court will remand the cause to the Circuit Court with directions to send it back to the state court, with costs against the party at whose instance the removal was made. This same principle was asserted in Crehore v. Ohio & Mississippi Railroad, 131 U. S. 240, where it was also held that where a suit is entered upon the docket of a Circuit Court as removed on the ground of the diverse citizenship of the parties, and was never in law removed, no amendment of the record made in the Circuit Court can affect the jurisdiction of the state court, or put the case rightfully on the docket of the Circuit Court as of the date when it was so docketed.

Opinion of the Court.

This same rule was applied at the present term, in Jackson v. Allen, ante, 27, where the judgment of the Circuit Court was reversed at the cost of the parties who attempted to remove the cause, and it was remitted to the Circuit Court with directions to remand it to the state court.

There is nothing in the foregoing views which involves the decision of this court in Barney v. Latham, 103 U. S. 205, which was to the effect that where in a case there was in fact an entirely separate controversy between the plaintiffs and several defendants petitioning for removal, with which controversy another defendant, a citizen of the same State with one of the plaintiffs, had no necessary connection, and which controversy could be fully determined as between the parties actually interested in it, without the presence as a party in the cause of such other defendant, not only could there be a removal, but the removal carried with it into the Federal Court all the controversies in the suit between all parties to it.

It is suggested that it is a hardship to the plaintiff to reverse his decrees for want of jurisdiction in the Circuit Court after he has prosecuted his suit in that court successfully, on his being taken into that court adversely more than six years ago. The answer is that the jurisdiction of this court in the present case to review the question of the jurisdiction of the Circuit Court could only arise on the hearing of an appeal from a final decree of the latter court, because by $ 5 of the act of March 3, 1875, 18 Stat. 472, this court was authorized to review only an order of the Circuit Court remanding a cause, and not one retaining jurisdiction over it. Even that provision was repealed by $ 6 of the act of March 3, 1887, 24 Stat. 555; and this court can now review a question as to the jurisdiction of a Circuit Court only in reviewing a final judgment or decree, although by the act of February 25, 1889, 25 Stat. 693, it may do so in a case not involving over $5000. It results from the foregoing considerations that both of the

decrees of the Circuit Court, as well that against Graves as that against the First National Bank of Chicago, must be reversed, and the case be remanded to the Circuit Court with a direction to remand it to the Circuit Court of Cook

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