residence in the district will not defeat his right of removal.21

The nominal plaintiff may sometimes be the real defendant and as such entitled to remove, as under state statutes prescribing that a party who cannot really control the litigation shall occupy the position of plaintiff on the record.22

SEPARABLE CONTROVERSIES

120. The jurisdiction by removal from state courts extends to controversies wholly between citizens of different states, and which can be fully determined as between them, when removal could be had as to any one or more of the defendants under the general principles heretofore discussed; such right of removal being granted in such cases to any one or more defendants actually interested.

In order to justify a removal on this ground, the controversy in a suit must be a separate and distinct cause of action, on which a separate suit could be maintained as between the parties thereto, independent of the others, and not a mere incidental controversy growing out of the main suit.

This class of removal cases is commonly called separable controversies.

In order to obtain a removal on this ground, it must appear from the plaintiff's pleadings that the controversy which it is desired to remove is a separable controversy.

The third sentence of section 28 of the Judicial Code provides: "And when in any suit mentioned in this section

21 Chiatovich v. Hanchett (C. C.) 78 Causes," Dec. Dig. (Key-No.) §§ 44, 45;

Fed. 193. See "Removal of
Cent. Dig. §§ 88, 89.

22 Mason City & Ft. D. R. Co. v. Boynton, 204 U. S. 570, 27 Sup. Ct. 321, 51 L. Ed. 629. See "Removal of Causes," Dec. Dig. (KeyNo.) 44; Cent. Dig. § 88.

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 into the district court of the United States for the proper district."

This is the class of removable cases commonly spoken of as separable controversies-a class which has been much discussed in the courts. It applies only to controversies between citizens of different states, so that controversies between citizens and aliens are not included.23

In this class of cases, although the citizenship of the parties on whom the right of removal is conferred can be made to appear in the petition for removal, and need not necessarily appear in the plaintiff's pleading, as such an allegation is not a part of any system of pleading, it must nevertheless appear from the plaintiff's pleading that the controversy which it is desired to remove is a separable controversy. Its capacity of severance must be decided solely upon the plaintiff's pleading, not upon the petition for removal, nor upon the defense set up. There may be separate issues in a case, but they do not constitute separable controversies. There may be defenses which are good as to some, and not as to others, but they do not make separable controversies.24

The courts have narrowed very much the cases which are removable under this act. As has been stated above, the fact that the issues or defenses are separate does not make the controversy separate. It is equally well settled

23 Creagh v. Equitable Life Assurance Society of United States (C. C.) 88 Fed. 1. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 48, 59; Cent. Dig. § 94.

24 Fidelity Ins., Trust & Safe Deposit Co. v. Huntington, 117 U. S. 280, 6 Sup. Ct. 733, 29 L. Ed. 898; Putnam v. Ingraham, 114 U. S. 57, 5 Sup. Ct. 746, 29 L. Ed. 65; Louisville & N. R. Co. v. Wangelin, 132 U. S. 599, 10 Sup. Ct. 203, 33 L. Ed. 474; Foster v. Coos Bay Gas & Electric Co. (C. C.) 185 Fed. 979. See "Removal of Causes," Dec. Dig. (Key-No.) §§ 48, 61; Cent. Dig. §§ 94, 115.

that even a controversy which is separable does not give a ground of removal if that controversy is a question merely incidental to the main controversy in the cause, and not of itself a principal controversy. For instance, Graves v. Corbin 25 was a bill to subject partnership assets to the payment of debts, and to set aside, as fraudulent, certain judgments confessed by the partnership. It was held that one of these judgment creditors could not remove the case, as the question of the validity of his judgment, though depending on different grounds, was a mere incident to the main litigation, which was to wind up the partnership as

sets.

So, in Torrence v. Shedd,2" which was a partition suit, a dispute between two of the parties in that suit as to their relative interests in the share of one of these parties was not so separable as to give the right of removal.

In Bellaire v. Baltimore & O. R. Co.27 which was a proceeding by the city of Baltimore to condemn a right of way for a street across a strip of land, to which the owner and the lessee were made parties, it was held that the lessee could not remove, although its interests would be separately valued, as that was a mere incident to the main question, which was the right of condemnation at all.

In Colburn v. Hill,29 which was a creditors' suit to wind up a corporation, and distribute its assets, and exclude certain defendants from sharing in the assets on the ground that a certain contract held by them with the corporation

25 132 U. S. 571, 10 Sup. Ct. 196, 33 L. Ed. 462. See, also, Miller v. Clifford, 133 Fed. 880, 67 C. C. A. 52, 5 L. R. A. (N. S.) 49. See "Removal of Causes," Dec. Dig. (Key-No.) § 52; Cent. Dig. §§ 102105.

Cent. Dig. § 101.

36 L. Ed. 910. See "Removal of Cent. Dig. § 101.

26 144 U. S. 527, 12 Sup. Ct. 726, 36 L. Ed. 528. See "Removal of Causes," Dec. Dig. (Key-No.) § 51; 27 146 U. S. 117, 13 Sup. Ct. 16, Causes," Dec. Dig. (Key-No.) § 51; 28 101 Fed. 500, 41 C. C. A. 467. Dig. (Key-No.) § 53; Cent. Dig. § 104.

See "Removal of Causes," Dec.

was invalid, it was held that these defendants could not remove the case on the ground of a separable controversy.

The Supreme Court has repeatedly said that, in order to justify a removal on this ground, the controversy in the suit must be a separate and distinct cause of action, on which a separate suit might have been maintained as between the parties therein interested, independent of the others. 29

Under these principles, suits on joint or joint and several contractual liabilities are not removable by some of the defendants. If the plaintiff elects to bring his suit in such a shape as to claim a joint liability against the defendants on contract, it is not for them to prevent him from trying his suit in his own way; and part of them cannot, therefore, obtain a removal on this ground.30

On the same principle, a case which appears from the plaintiff's declaration to be a joint action in tort against several defendants cannot be removed by one of those defendants.31

There have been many decisions on the question of suits for personal injuries where both the defendant corporation and the employé causing the accident are sued. In such case, if, as far as the pleadings show, the cause of action is a joint one, it cannot be removed by one of the two defendants. This, however, though to a certain extent a

29 HYDE v. RUBLE, 104 U. S. 407, 26 L. Ed. 823; Fraser v. Jennison, 106,U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131. See "Removal of Causes," Dec. Dig. (Key-No.) § 48; Cent. Dig. §§ 93, 94. 30 Louisville & N. R. Co. v. Ide, 114 U. S. 52, 5 Sup. Ct. 735, 29 L. Ed. 63; STONE v. SOUTH CAROLINA, 117 U. S. 430, 6 Sup. Ct. 799, 29 L. Ed. 962; Lewis v. Cincinnati, N. O. & T. P. Ry. Co. (C. C.) 192 Fed. 654; ante, pp. 323, 324. See "Removal of Causes," Dec. Dig. (Key-No.) § 49; Cent. Dig. §§ 95–99.

31 Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161, 29 L. Ed. 331; CHESAPEAKE & O. RY. CO. v. DIXON, 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121; Chicago, R. I. & P. R. Co. v. Dowell, 229 U. S. 102, 33 Sup. Ct. 684, 57 L. Ed.; Stevenson v. Illinois Cent. R. Co. (C. C.) 192 Fed. 956. See "Removal of Causes," Dec. Dig. (KeyNo.) 49; Cent. Dig. §§ 95-99.

question of pleading, depends upon the further question whether such suits are, in fact and in law, joint suits against the employer and employé.

In Chesapeake & O. Ry. Co. v. Dixon,82 referred to in a previous connection, the Supreme Court was careful to base its opinion upon the fact that the declaration alleged joint negligence; and the decision was influenced to some extent by the fact that in Kentucky, where the action arose, the decisions were that a joint action by an injured party against an employer and employé was one in which they were jointly liable. But in Helms v. Northern Pac. R. Co.33 Judge Amidon, in an exceedingly well considered opinion, reviewing the authorities, including the abovenamed Supreme Court case, held that under certain circumstances, at least, such a suit would not be a suit for a joint tort; that the liability of a master and servant rested on different grounds; and that, unless it appeared from the declaration, or at least was consistent with it, that the negligence complained of was such a negligence as gave a joint cause of action, the defendant could remove. The case was a suit by a servant against the fellow servant who caused the negligence, and the corporation who employed them both. At common law the corporation would not

32 179 U. S. 131, 21 Sup. Ct. 67, 45 L. Ed. 121. See, also, Southern Ry. Co. v. Carson, 194 U. S. 136, 24 Sup. Ct. 609, 48 L. Ed. 907; Alabama G. S. R. Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147; Cincinnati, N. O. & T. P. R. Co. v. Bohon, 200 U. S. 221, 26 Sup. Ct. 166, 50 L. Ed. 448, 4 Ann. Cas. 1152; Southern R. Co. v. Miller, 217 U. S. 209, 30 Sup. Ct. 450, 54 L. Ed. 732; Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. See "Removal of Caus

es," Dec. Dig. (Key-No.) § 49; Cent. Dig. §§ 95-99. 33 (C. C.) 120 Fed. 389. The question is influenced greatly by the consideration whether under the law of the state the suit would be a joint one. McAllister v. Chesapeake & O. R. Co. (D. C.) 198 Fed. 660; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. See "Removal of Causes," Dec. Dig. (KcyNo.) § 49; Cent. Dig. §§ 95-99.