LADEN et al. v. MECK et al., 130 F. 877

SEVERENS, Circuit Judge, having made the preceding statement, delivered the opinion of the court. When this appeal came on for hearing, it was observed that a question concerning the jurisdiction of the court below was presented by the record, but we consented to pass it and hear the arguments of counsel upon the merits. Upon consideration we are convinced that the removal into the Circuit Court was unauthorized, and that we cannot consider its decree upon the merits.

In view of the facts that the only concern of the removing defendants was with the question whether their contract with the complainant should be specifically enforced, while the other defendants were concerned with questions relating to the disposition of the purchase money, it may be that the removing defendants had a separable controversy with the complainant. We do not, however, decide that question. The petition did not in terms claim that there was a separable controversy.

In respect to the citizenship of the parties the petition alleged “that, at the time said suit was brought, the plaintiff was, and still is, a resident and citizen of the state of Ohio, and that the defendants John A. Mathews and Ida Hurst Mathews were, and still are, residents and citizens of the state of Michigan; that the defendants Rumina- Ayres, David Ayres, and Anna Ayres were, and still are, residents of the state of Illinois, and that none of your petitioners herein are residents and citizens of the state of Ohio.” The difficulty is that the citizenship of the defendants Ayres is not alleged.

It appears only that they are residents of Illinois, and are not citizens of Ohio. It is not shown that they are citizens of any other state, and, for aught that appears, they may have been citizens of the District of Columbia or of some territory, in which case the suit would not have been removable. Hepburn v. Ellzey, 2 Cranch, 445, 2 L. Ed. 332; New Orleans v. Winter, 1 Wheat. 91, 4 L. Ed. 44; Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825; Hooe v. Jamieson, 166 U. S. 395, 17 Sup. Ct. 596, 41 L. Ed. 1049. Or, indeed, they may have been aliens.

While the statute provides for the removal of some cases by aliens, in the instance of separable controversies the controversy must be “wholly between citizens of different states.” It is supposed, in Dillon on Removals by Black, § 84, that “the failure to extend the right of removal in such a case is a casus omissus.” But Chief Justice Waite, in King v. Cornell, 106 U. S. 395, 1 Sup. Ct. 312, 27 L. Ed. 60, demonstrates that the omission was intentional.

At all events, it is clear that the parties to the separable controversy must all be citizens of states, in order to found the right of removal from the state court. And the members of each of the respective parties to that controversy must all be citizens of different states from those of the members of the opposite party. Removal Cases, 100 U. S. 457, 25 L. Ed. 593; Fraser v. Jennison, 106 U. S. 191, 1 Sup. Ct. 171, 27 L. Ed. 131.

And the question whether there is a separable controversy must be determined by the state of the pleadings and the record at the time of filing the petition for removal, and not by any subsequent proceedings which may be had in the case. Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514; Wilson v. Oswego Township, 151 U. S. 56, 66, 14 Sup. Ct. 259, 38 L. Ed. 70. It follows that the removal of this case from the state court was unauthorized.

The decree of the court below must be reversed, and the cause remanded, with instructions to remand it to the state court from which it was removed; the costs of both the circuit and this court to be paid by the removing defendants.