George Bliss & Co. v. Rawson

McCay, Judge. 1. If this case can be removed to the Circuit Court of the United States, it must be by the Act of Congress of 1867: Brightly’s Digest. The Act of 1789 and the Act of 1866 apply, in terms, only to defendants: Brightly’s Digest. Under the Act of 1789, the Courts uniformly held that one of several defendants could not remove the suit. If there were more than one real defendant, and all 'were non-residents of the State, then all must join in the motion. If there was one of the defendants resident of the State in the Courts of which the suit was pending, the case was not removable at all, since the resident defendant could not remove his suit, and the Act directed the State Court to proceed no further with the suit. By the Act of 1866, it was enacted that one of several defendants might move his suit, provided the Federal Court could adjudge the controversy between him and the plaintiff without the presence of the other defendants. And the Act expressly provided that the State Court should not, by the effect of the removal, be stopped from proceeding against the other defendants: Act of 1866, Brightly’s Digest. And this restriction of the right of one of several defendants to remove was not because of the policy of the matter, but because it would have been unconstitutional to carry before the United States Courts an ordinary controversy between citizens of the same State: Constitution United States, Article III. As to plaintiffs, there is no express authority for one of [184] several plaintiffs, who is joined as plaintiff with other plaintiffs resident citizens of the State in which the suit is brought, to move his case at all. The Act of 1867 says any plaintiff or any defendant. The Act of 1789 had said a defendant, and the Courts had held that this meant, not one of several defendants, but the party — the whole defendant. It is hard to see why the words should receive one construction in the Act of 1789 and another in the Act of 1867. The constitutional inability of the United States Courts to determine a controversy between citizens of the same State, is just as clear in the case of plaintiffs as defendants; and the Act of 1867 contains the same prohibition against the State Court going on with the suit as was in the Act of 1789, a prohibition, which was not in the Act of 1866, since the latter Act providing for the case of one of several defendants, has directly the contrary provision. 2. But admitting that it was the object of the Act of 1867 to permit one plaintiff to remove his suit, when there were co-plaintiffs, citizens of the State in which the suit is pending, it is very clear to me, that his right must be restrained by the qualification that his controversy with the plaintiff must be of such a character as that it can be determined without the presence of his co-plaintiffs who are citizens of Georgia. And this, for the obvious reason that the Courts of the United States have no jurisdiction, except in special cases, of controversies between citizens of the same State. The only real question, therefore, in this case is, whether the dispute, as it is made by the record in this case, between Trowbridge, Dwight & Company and Mrs. Eawson, can be settled without the presence of the co-plaintiffs, who are citizens of this State. Trowbridge, Dwight & Company did not so think when they filed their bill; since, they made three Georgia citizens co-plaintiffs with themselves. The controversy necessarily involves the question — What are the rights of Tift, Cruger and others against Mrs. Eawson ? It involves the marshaling of the assets of the estate, and the settlement of the disputes of the various creditors with each other, and [185] with Mrs. Rawson, as administratrix and as an individual. It is, in fact, impossible to grant the prayer of this bill, without deciding the preferences between Cruger and Tift, and the validity of their claims against the estate of Rawson. We do not well see, either, how the Circuit Court of the United States can decide upon the validity of the award of the commissioners, nor how it can direct the administration. These parties have sought our forum, they have joined with citizens of this State in a suit, they have forced, by their motion, various other citizens of Georgia to come into the controversy as co-plaintiffs with themselves, and we think it accords neither with the letter nor spirit of the Acts of Congress, to permit them to withdraw their suit into another jurisdiction, leaving behind them those whom they have themselves put into litigation with each other and Mrs. Rawson,, Judgment affirmed. Lochrane, C. J., concurred, but furnished no opinion.