LOMAX v. FOSTER LUMBER CO. et al., 174 F. 959

PARDEE, Circuit Judge (after stating the facts as above). The paramount question is the jurisdiction of the Circuit Court through the removal of the suit' from the state court. The statutory action of “trespass to try title” was brought by the plaintiff in error in the district court of Liberty county, Tex., to recover one certain tract of land in said county, the David Rankin survey, patented August 30, 1849. By

article 5255, Rev. St.

Tex. 1895, controlling proceedings in such actions: “The plaintiff may ,i'oin as a defendant with the person in .possession any other person who, as landlord, remainderman, reversioner or otherwise, may claim title to the premises or any part thereof adversely to the plaintiff.” Under the right thus given, the plaintiff, a citizen of Hill county, Tex.,.joine4 as defendants with the Foster Lumber Company a corporation duly incorporated by virtue of the laws of Missouri, the Trinity River Lumber Company, alleged to be a corporation duly incorporated under and by virtue of the laws of the state of Texas with a main office in Harris county, Tex., and L.

H. Perry and J. B. Mann, both of Harris county, Tex. An inspection of the original petitions in connection with the petition for removal shows clearly that the case was not removable solely on the ground of diverse citizenship. If the case was removable at ^11, it was under that provision of

section 1, judiciary acts of 1887 and 1888 (Act March 3, 1887, c. 373, 24 Stat. 552; Act Aug. 13, 1888, c. 866; 25 Stat. 433 [U. S. Comp. St. 1901, p. 509]), and which reads: “And when in any suit mentioned in this

section 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 such suit into the Circuit Court of the United States for the proper district.” The question' then is whether the petition for removal filed by the Foster Lumber Company in connection with the pleadings then on file in the state district court shows a separable controversy within the meaning of the statute above quoted.

The status of the Trinity River Lumber Company in this case is important as well as peculiar: Its answer is to the effect that it was neither a corporation nor partnership, had rio legal identity, all its property belongs to the Foster Lumber Company, and, except for the rights held for the Foster Lumber Company, disclaims any interest or title to the land sued for, and asks to be dismissed.

The petition for removal says that the Trinity River Lumber Company is neither a partnership nor corporation, and, in fact, has no leg'al identity, and is only a name by which the Eoster Lumber Company conducts a part of its business, and that, in fact, it is the Foster Lumber Company, and. whatever titles or property stands in its name is in fact property of the Foster Lumber Company.

The Trinity River Lumber Company was not dismissed from the case, but (represented by counsel) continued therein until the final trial, and then judgment was specifically rendered in favor of the Roster J,umber Company against it, and it is a defendant in error iti this court.

If we take its answer, it has no legal identity, which may mean no capacity to sue or be sued, but it holds property for the Foster Lumber Company and it makes no full disclaimer, ilv the petition for removal the Trinity River Lumber Company lias no identity, but is a business name for and it is the Foster Lumber Company. 1 f these claims for the Trinity River Lumber Company are true, it is difficult to understand why it was not dismissed from the case.

If die Trinity River Lumber Company was an entity, capable of being sued, then it was a proper party and its qualified disclaimer would not take it out of the case; and with it in the case, in the attitude given it by the petition for removal, there was dearly no separable controversy. The defendant Perry was a proper party to the suit. In his answer, filed in the state court prior to the petition for removal, he claims that he owns one-half of the land in controversy, and that the Foster Lumber Company owns the other half, and asks judgment against the plaintiff and his codefencfant, the Foster Lumber Company.

As to Perry, the petition for removal denies his interest with the petitioner, asserts that, if he has any interest, it is distinct and independent from the controversy between the plaintiff and petitioner. And as to Mann the same averments are made, but Mann pleads only the general issue, and we cannot say under which Rankin or against which parties other than the plaintiff he claims. If Perry’s answer controls as to interest and attitude, then, as between the plaintiff below and the Foster Lumber Company, there was no separable controversy.

The petition for removal avers that in the suit there is a controversy between citizens of different states — i. e., the plaintiff and petitioner— which can lie fully determined between them without the presence of other parties, but this is a conclusion of the petitioner not borne out by the record. And so it seems that neither in the pleadings in the state court prior to the petition for removal nor in the petition for removal in connection therewith can we find a separable controversy within the meaning of

section 1 of the acts of 188?' and 1888 warranting the removal of this case to the Circuit Court. If we look to the entire record before us and into the case as actually tried in the court below, we find that the only separable controversy in the case was between the Foster Lumber Company and defendant Perry, in which trial by jury wras waived and the separate issue tried by the court.

As the suit brought by the plaintiff in error was an action of trespass to try title under the Texas statute wherein the recovery of one tract only was involved and wherein the plaintiff under the state statute could join all parties who claimed adverse interests as defendant, it is doubtful whether any defendant or defendants could under any circumstances make out a case of separable controversy therein which would warrant removal of the case to the Circuit Court of the United States. In Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726, 36 L.

Ed. 528, which was a case arising under the more liberal judiciary act of 1875 (Act March 3, 1875, c. 137, 18 Stat. 470 [U. S. Comp. St. 1901, p. 508]), the Supreme Court said: “By

section 2 of that act, as heretofore construed by this court, whenever, in any suit of a civil nature in a state court, where the matter -in dispute exceeds the sum or value of $500, ‘there shall be a controversy.which is wholly between citizens of different states, and which can be fully determined as between them,’ any one of those interested in that controversy may remove the whole case into the Circuit Court of the United States, 18 Stat. 470, 471; Barney v. Latham, 103 U. S. 205 [26 L. Ed. 514]; Brooks v. Clark. 119 U. S. 502 [7 Sup. Ct. 301, 30 L. Ed. 482].

But, in order to justify such removal, on the ground of a separate controversy between citizens of different states, there must by the very terms of the statute be a controversy ‘which can be fully determined as between them’; and by the settled construction of this

section the whole subject-matter of the suit must be capable of being finally determined as between them and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the suit. Hyde v. Ruble, 104 U. S. 407 [26 L. Ed. 823: Corbin v. Van Brunt, 105 U. S. 576 [26 L. Ed. 1176]; Fraser v. Jennison, 106 U. S. 191 [1 Sup. Ct. 171, 27 L. Ed. 131]; Winchester v. Loud, 108 U. S. 130 [2 Sup. Ct. 311. 26 L. Ed. 677]; Shainwald v. Lewis, 108 U. S. 158 [2 Sup. Ct. 385, 27 L. Ed. 691]; Ayres v. Wiswall, 112 U. S. 187 [5 Sup. Ct. 90, 28 L. Ed. 693]; Fidelity Ins. Co. v.

Huntington, 117 U. S. 280 [6 Sup. Ct. 733, 29 L. Ed. 898]; Graves v. Corbin, 132 U. S. 571 [10 Sup. Ct. 196, 33 L. Ed. 462]; Brown v. Trousdale, 138 U. S. 389 [11 Sup. Ct. 308, 34 L. Ed. 987]. As this court has repeatedly affirmed, not only in cases of joint contracts, but in actions for torts, which might have been brought against all or against any one of the defendants, ‘separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies.

A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to xmosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.’ Louisville & Nashville Railroad v. Ide, 114 U. S. 52, 56 [5 Sup. Ct. 735, 737 (29 L. Ed. 63)]; Pirie v. Tvedt, 115 U. S. 41, 43 [5 Sup. Ct. 1034, 1161, 29 L. Ed. 331]; Sloane v.

Anderson, 117 U. S. 275 [6 Sup. Ct. 730, 29 L. Ed. 899]; Little v. Giles, 118 U. S. 596, 601, 602 [7 Sup. Ct. 32, 30 L. Ed. 269]; Thorn Wire Hedge Co. v. Fuller, 122 U. S. 535 [7 Sup. Ct. 1265, 30 L. Ed. 1235].” In Bellaire v. Baltimore & O. R. Co., 146 U. S. 117, 13 Sup. Ct. 16, 36 L. Ed. 910, a case arising under the act of 1887 now in force— Torrence v. Shedd — was cited with approval. In Wilson v. Oswego Township, 151 U. S. 67, 14 Sup. Ct. 264 (38 L. Ed. 70), the court, quoting from Torrence v. Shedd, reiterates: “By the settled construction of this

section referring to separable controversies the whole subject-matter of the snit must he capable of being finally determined as between them (the parties seeking removal)-, and complete relief afforded as to the separate cause of action without the presence of others originally made parties to the snit.” In Powers v. Chesapeake & O. Railway Co., 169 U. S. 97, 18 Sup. Ct. 265 (42 L.

Ed. 673), in which the question of separable controversy giving the right to remove was involved, the court, citing numerous authorities, said: “It is wed settled that an action of tort which might have been brought against many persons or against any one or more of them, and which is brought in a state court against all jointly, contains no separate controversy which will authorize its removal by some of the defendants into the Circuit Court of the United States, even if they file separate answers and set up different defenses from the other defendants, and allege that they are not jointly liable with them, and that their own controversy with the plaintiff is a separate one; l'or, as this court has often said, a defendant has no right to say that an action shall he several which the plaintiff seeks to make joint.

A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his suit to final decision in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit whatever the plaintiff declares it to be in his pleadings.” For a full review of the adjudicated cases on the subject, see Moon on Removal of Causes, § 138 et seq.

As this present case was wrongfully removed from the state court to the Circuit Court for the Eastern District of Texas, that court was without jurisdiction and no subsequent proceedings by consent or otherwise could give jurisdiction, and it follows that the Circuit Court for the Southern District of Texas, to which by consent the case was removed for convenience of trial, was without jurisdiction in the premises. 'flic judgment of the Circuit Court is reversed and the cause is remanded, with instructions to remand the same to the district court of Liberty county, Tex., all at the costs of the Foster Dumber Company.