fered by plaintiff's intestate were the true and proximate result of the combined joint and concurrent negligence of the corporate defendant and its codefendants then in its service." Held, that the declaration stated a cause of action for a joint tort committed by all of the defendants, and that the railroad company, whose citizenship alone was diverse, was therefore not entitled to remove the cause to the federal court.-Louisville & N. R. Co. v. Vincent, 116 Tenn. 317, 95 S. W. 179.

IV. PRIORITIES OF LIENS OR RIGHTS IN SUBJECT-MATTER.

[a] (U. S. 1909) A separable controversy exists, removable to a federal court by a foreign corporation, joined as a party defendant to a suit to foreclose a mortgage, where both mortgagor and mortgagee, who are citizens of the state, unite in attacking the validity of a prior mortgage in favor of such corporation on the ground that it was doing business without complying with state laws, and that the secured note embraced charges exacted because of an illegal combination in restraint of trade. Decree (1907) Boatmen's Bank of St. Louis v. Fritzlen, 89 Pac. 915, 75 Kan. 479, affirmed.-Fritzlen v. Boatmen's Bank, 212 U. S. 364, 29 Sup. Ct. 366, 53 L. Ed. 551.

[b] (U. S. 1900) A creditors' suit, the purpose of which is to obtain the administration of the property of an insolvent corporation, and incidentally to exclude certain of the defendants from participating in the distribution of such property, on the ground of the invalidity of a contract made by the corporation, on which their rights as creditors depend, is indivisible, and no one of such defendants can remove the cause on the ground that there is a separable controversy as to him, although their interests may be several, and their defenses different.-Colburn v. Hill, 41 C. C. A. 467, 101 Fed. 500.

[c] (U. S. 1905) An action in a state court by a mortgagee against his mortgagors and their creditor, claiming a mortgage lien, to foreclose the mortgage, fix the amount of the mortgage debt, adjust the liens, and adjudge their priority, presents a single controversy.-(C. C. 1904) Weldon v. Fritzlen, 128 Fed. 608, reversed Boatmen's Bank v. Same (1905) 68 C. C. A. 288, 135 Fed. 650.

[d] (U. S. 1900) In a suit in a state court to enforce a mechanic's lien, other lien claimants were made defendants, and filed cross petitions for the enforcement of their liens. The principal defendant filed an answer and cross petition bringing in as defendants a mortgagee alleged to hold a lien on the property by virtue of an after-acquired property clause in its mortgage, and also a subsequent grantee of the property, whose deed the defendant asked to have canceled or reformed. Such mortgagee and grantee were citizens of the same state. Held, that each of such cross defendants was adversely interested in the controversy of the other, so that neither could remove the cause on the ground of a separable controversy as to which a diversity of citizenship existed.-Gates Iron Works v. James E. Pepper & Co. (C. C.) 98 Fed. 449.

[e] (Colo. 1901) In a condemnation proceeding, where the parties defendant are a domestic corporation and also a foreign corporation acting as trustee for the holders of bonds secured by a mortgage on the premises sought to be condemned, the controversy as to the foreign corporation is not separate, so as to give it a right to remove the cause to a federal court.-Colorado Fuel & Iron Co. v. Four Mile Ry. Co., 29 Colo. 90, 66 Pac. 902.

[f] (Ga. 1905) In a suit by a judgment creditor against the debtor and a lien creditor, a prayer for the subjection of the property of the defendant debtor to plaintiffs' judgment does not make a separable controversy between plaintiffs and the nonresident creditor defendant, so as to authorize removal to the United States court on the ground of diverse citizenship.-Palmer v. Inman, 122 Ga. 226, 50 S. E. 86.

V. SEPARATE RELIEF AGAINST DIFFERENT DEFENDANTS.

[a] (U. S. 1902) In order to show the existence of a controversy, facts must be alleged which present a question for the determination of the court. and a prayer, inter alia, for relief against one of several defendants, does not

create a separate controversy with such defendant, where there are no averments in the bill upon which such relief could be based.-MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co., 55 C. C. A. 648, 119 Fed. 96.

[b] (U. S. 1905) Where a bill against numerous defendants for the foreclosure of a mortgage alleged that certain property nominally owned by a defendant other than the mortgagor was within complainant's mortgage, under a clause covering after-acquired property, in which claim some, but not all, of the defendants were interested, such claim created a separable controversy, which rendered the cause removable by the defendant claiming ownership of the property; the requisite diversity of citizenship being shown between the parties interested therein.-New England Water Works Co. v. Farmers' Loan & Trust Co., 69 C. C. A. 297, 136 Fed. 521.

[c] (U. S. 1905) A proceeding by a railroad company to condemn right of way under the statutes of South Dakota against a number of defendants owning land in severalty presents a separable controversy with respect to each owner, and is removable by a defendant, who is a citizen of another state, where the requisite amount is involved to give the federal court jurisdiction. -South Dakota Cent. Ry. Co. v. Chicago, M. & St. P. Ry. Co., 73 C. C. A. 176, 141 Fed. 578.

[d] (U. S. 1899) A suit to quiet title, brought in a state court, against a number of defendants, for the purpose of obtaining an adjudication of all claims adverse to complainant which may exist in favor of any of the defendants, is severable as to each defendant; and a defendant who is a citizen of a different state from complainant may remove the cause, as against him, to the federal court, where the requisite amount is involved.-Bates v. Carpentier (C. C.) 98 Fed. 452.

[e] (U. S. 1903) Defendant J. received under the will of her husband certain real estate and personal property for life, remainder to plaintiffs. Defendant J. insured the property with defendant insurance company for $2,875, the policy providing that in case of loss the insurer should be bound for threefourths of the actual cash value of the property. After loss a settlement was made between defendant J. and insurer, fixing the loss at $1,500. Thereafter plaintiffs, who were remaindermen, brought suit against J. and the insurance company, claiming, as against the insurance company, to recover the entire face value of the policy, and, as against J., that the insurance covered the interest of the remaindermen, and that J. was a trustee of the fund to hold for herself for life, remainder to plaintiffs. Plaintiffs and J. were citizens of the same state, but defendant insurance company was not. Held, that the controversies between plaintiffs and each defendant were different and separable, and that the insurance company was therefore entitled to remove the cause to the federal court.―-Harley v. Home Ins. Co. (C. C.) 125 Fed. 792.

VI. LIABILITIES ON DIFFERENT GROUNDS.

[a] (U. S.) Where a complaint seeks to establish an indebtedness against a corporation defendant alleged to be insolvent, and also asks judgment therefor against a second defendant on the ground that it had assumed all the indebtedness of the first corporation, there is a separable controversy shown between plaintiff and such second defendant.-(C. C. A. 1899) Mecke v. Valleytown Mineral Co., 35 C. C. A. 151, 93 Fed. 697; (C. C. 1898) Id., 89 Fed. 209. [b] (U. S. 1905) An action against a railroad company and certain of its servants to recover for the death of a person, alleged to have been caused by the reckless, wanton, willful, and malicious acts of such servants while engaged in the duties of their employment, where the complaint alleges no facts to charge the company with participation in such acts of its servants, involves a separable controversy; the causes of action and the measure of damages recoverable against the company and its codefendants being different, and the cause is removable by the company, where the requisite diversity of citizenship exists.-(C. C. 1903) Davenport v. Southern Ry. Co., 124 Fed. 983, reversed (1905) 68 C. C. A. 444, 135 Fed. 960.

[c] (U. S. 1898) Where the declaration in an action in a state court against two defendants to recover damages for a personal injury alleges a separate

and distinct cause of action against each defendant, based upon separate contracts with each, the facts specifically alleged against one constituting no cause of action against the other, the cause, as against one defendant which is a citizen of another state, is removable.-Batey v. Nashville, C. & St. L. Ry. (C. C.) 95 Fed. 368.

[d] (U. S. 1901) A complaint in an action in a state court to recover for the death of plaintiff's intestate made two corporations defendants. It alleged that the first corporation was the owner of a building into which it invited the deceased, where he fell down an unguarded elevator shaft, of which he was given no warning, and was killed. It alleged that the second corporation had erected the building under a contract with the first which bound it to complete the same in a proper manner, and that it failed to perform such contract, by negligently leaving the elevator shaft unguarded. Held, that the action involved a separable controversy as to each defendant, and was removable by one of the defendants which was a citizen of a different state from plaintiff.-Coker v. Monaghan Mills (C. C.) 110 Fed. 803.

[e] (U. S. 1903) Where the cause of action alleged in a complaint against a railroad company and one of its employés is based solely on the alleged negligence of the employé, no concurrent negligence of the company being charged, the cause is removable by the company as involving a separable controversy, the requisite diversity of citizenship and amount involved being shown.-Helms v. Northern Pac. Ry. Co. (C. C.) 120 Fed. 389.

[f] (U. S. 1906) Where plaintiff, an alien, sued defendant guaranty company, a nonresident corporation, on a fidelity bond, in which the only obligation of the principal was to hold the guaranty company harmless from any liability on the bond, and in the same action plaintiff sought to hold the principal liable for the embezzlement for which action was brought on the bond, the controversy between plaintiff and the guaranty company was separable from that between it and the principal on the bond, and removable to the federal courts, regardless of the citizenship of the principal, who was a resident of the state where the action was brought.-Iowa Lillooet Gold Min. Co. v. Bliss (C. C.) 144 Fed. 446.

VII. SEPARATE INTERESTS OR CLAIMS IN SUBJECT-MATTER OR PART THEREOF. [a] (U. S. 1905) In a suit for an undivided half interest in a single tract of land alleged to be wrongfully withheld by the two defendants, there is no separable controversy, so as to allow removal to the federal Circuit Court, though the citizenship of plaintiffs and of only one of defendants is diverse. -Knight v. Lutcher & Moore Lumber Co., 136 Fed. 404, 69 C. C. A. 248, rehearing denied Forsyth Mfg. Co. v. Putnam Hooker & Co., 71 C. C. A. 684, 139 Fed. 1007.

[b] (U. S. 1902) A suit to quiet title, brought in a state court against a number of defendants, for the purpose of obtaining an adjudication of all claims adverse to complainant which may exist in favor of any of the defendants, and in which the bill contains no averment that defendants claim through a common source of title or of right, is severable as to each defend ant, and a defendant who is a citizen of a different state from complainant may remove the cause as against him into the federal court.-Carothers v. McKinley Mining & Smelting Co. (C. C.) 116 Fed. 947.

[c] (U. S. 1905) In a suit by a purchaser to enforce specific performance of a contract for the sale of lands, against the vendor and grantees to whom he conveyed the land subsequent to the contract with complainant, but before it was recorded, there is a separate controversy with such grantees, involving their right to hold the land as against the complainant, which gives them the right to remove the cause, where they are nonresidents and the requisite amount is involved.-Elkins v. Howell ( C. C.) 140 Fed. 157.

[d] (U. S. 1905) In a condemnation proceeding instituted by a railroad company, under Rev. St. Wis. 1898, § 1845 et seq., by the filing of a petition in a circuit court of the state against numerous property owners, upon which the statute provides for a hearing as to petitioner's right to condemn, and, if such right is sustained, for the appointment of a commission, which, on request of the company or the owner, shall appraise any piece of the property

100 C.C.A.-2

described, from which appraisal an appeal may be taken to the court, and tried to a jury as in ordinary law actions, there is a single controversy only presented as to the right to condemn, to be determined between the petitioner, on one side, and all of the parties joined as defendants, on the other; and the mere fact that a defendant is the owner of part of the lands sought to be taken in severalty does not create a separable controversy between him and the petitioner, which entitles him to remove the proceeding into a federal court on the ground of diversity of citizenship.-Perkins v. Lake Superior & S. E. Ry. Co. (C. C.) 140 Fed. 906.

[e] (U. S. 1907) In a proceeding in a state court by a railroad company to condemn right of way, in which the owners of different parcels of land are joined as permitted by Code W. Va. 1899, c. 42, § 4 [Code 1906, § 1364] which provides that such owners may be joined or proceeded against separately, there is a separable controversy between the petitioner and the owner or owners of each tract, and, where all those defendants owning or having any interest in certain tracts are citizens of other states, and have no interest in any other tract, they may remove the cause as to them into the federal court, where the amount in controversy is sufficient.-Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co. (C. C.) 152 Fed. 824.

[f] (U. S. 1908) An action in a state court to condemn right of way over a tract of land, the fee of which is owned by a defendant who is a citizen of the same state as plaintiff, does not involve a separable controversy between plaintiff and a nonresident defendant, joined as having a leasehold interest in all or a part of the tract, which entitles the latter to remove the cause into a federal court, although he may be entitled to a separate award of compensation covering his interest.-Oroville & N. R. Co. v. Leggett (C. C.) 162 Fed. 371.

[g] (U. S. 1909) In a suit by a purchaser to enforce specific performance of a contract for the sale of land against the vendor and a grantee to whom he conveyed the land subsequent to the contract with complainant, but before it was recorded, there is a separate controversy with such grantee involving his right to hold the land as against the complainant, which gives him the right to remove the cause where he is a nonresident and the requisite amount is involved.-Wheeling Creek Gas Coal & Coke Co. v. Elder (C. C.) 170 Fed. 215; Same v. Crow, Id.

VIII. DETERMINATION OF CONTROVERSY WITHOUT ALL PARTIES.

[a] (Mich.) It would be impracticable in case of an ejectment against the actual occupant and another merely incidental party who has been joined as a defendant under our statute, by reason of his privity in estate with such occupant, to work out any final and effectual determination of the controversy as to such incidental party by pursuing him separately in a distinct jurisdiction.-(1874) Crane v. Seitz, 30 Mich. 453; (1875) Crane v. Gerloff, 31 Mich. 454.

[b] (Miss. 1905) Where the complaint in an action for injuries to a servant against two railroad companies, one of which only was a nonresident, did not allege a separable controversy between plaintiff and each defendant, it was immaterial to the right of the nonresident company to remove the cause to the federal court that a peremptory instruction was given by the court in favor of the resident defendant.-Illinois Cent. R. Co. v. Harris, 85 Miss. 15, 38 South. 225.

[c] (N. C. 1898) Where complete relief could not have been granted without the presence of all of defendants in a creditors' bill, even if plaintiff had elected to split the action up and sue one of defendant corporations for its assumption of the debt of the insolvent defendant corporation, the suit is not separable, so as to allow a removal to a federal court on the ground of diversity of citizenship of the first-named corporation.-Mecke v. Valleytown Mineral Co., 122 N. C. 790, 29 S. E. 781.

[d] (N. C. 1907) That plaintiff might have sued defendants separately is immaterial on a petition to remove the cause.-Davis v. Rexford, 59 S. E. 1002. [e] (Tex. 1908) Where an action was brought against a railroad company, which, if sued alone, would have been entitled to remove the cause, and a resident not entitled to remove, and a verdict was rendered in favor of the

resident and against the corporation, on which a judgment was entered, which was reversed on the railroad company's appeal, that plaintiff did not appeal from the judgment in favor of the resident defendant did not entitle the railroad company, after reversal, to remove the cause on the theory that the action then involved a controversy only between plaintiffs and itself.— Huber v. Texas & P. Ry. Co. (Civ. App.) 113 S. W. 984.

IX. REMOVAL OF WHOLE SUIT.

[a] (U. S. 1900) Where a complaint in an action in a state court states four distinct causes of action agreeably to the rules of pleading in such state, and one of such causes of action is within the jurisdiction of the circuit court of the United States, the cause is removable to the latter court in its entirety, although the record fails to show that the remaining causes of action would have been within its jurisdiction if sued upon separately.Hoge v. Canton Ins. Office of Hong Kong (C. C.) 103 Fed. 513.

[b] (U. S. 1907) There is a clear distinction between controversies which are merely "separable," within the meaning of the removal statute, and those which are wholly separate and distinct, and only joined in one suit by express statutory permission, as in case of proceedings for condemnation of a railroad right of way in which as permitted by statute owners of different tracts of land are joined in the same proceeding, and in such a case a removal of the cause by the owner or owners of one tract does not carry with it the proceedings as against other owners.-Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co. (C. C.) 152 Fed. 824.

X. PARTIES ENTITLED TO REMOVE.

[a] (U. S. 1906) Under Removal Act March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, pp. 507-509], giving to a nonresident defendant the right to remove from a state court any suit there pending of which the Circuit Courts of the United States are given original jurisdiction by the preceding section, including a controversy between citizens of a state and foreign states, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum of $2,000, a suit in which there is a separable controversy between an alien corporation and a nonresident cor poration defendant is subject to removal.-Iowa Lillooet Gold Min. Co. v. Bliss (C. C.) 144 Fed. 446.

[b] (U. S. 1907) A corporation which had conveyed the legal title to certain lands to trustees by a mortgage which had been foreclosed and an order of sale entered, and which after such decree sold its equity of redemption to another, had no interest in the lands after such sale which made it a necessary party to proceedings for the condemnation of a right of way over such lands, even though a formal conveyance to the purchaser had not been executed at the time the proceedings were instituted, and a conveyance subsequently executed did not make the grantee a purchaser pendente lite and without standing to remove the cause.-Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co. (C. C.) 152 Fed. 824.

XI. ALLEGATIONS IN PLEADING.

[a] (U. S. 1904) The question whether there is a separable controversy in a suit, which will authorize its removal, must be determined by the state of the pleadings and the record at the time of filing the petition for removal. -Laden v. Meck, 65 C. C. A. 361, 130 Fed. 877.

[b] (U. S. 1902) The question whether an action involves a separable controversy which renders it removable by a nonresident defendant is to be de termined from what appears as a matter of law on the face of the plaintiff's pleading. Riser v. Southern Ry. Co. (C. C.) 116 Fed. 215.

[e] (U. S. 1903) Whether or not an action presents a separable controversy between plaintiff and one of two or more defendants, which entitles such defendant to remove the cause, is to be determined from the allegations of the complaint alone, and cannot be shown by averments in the petition for removal.-Fogarty v. Southern Pac. Co. (C. C.) 123 Fed. 973.

[d] (U. S. 1903) Where a defendant who is a citizen of the same state as