Vimont v. Chicago & Northwestern Railway Co.

Adams, J. I. It seems proper to consider the question first which is presented by the defendant’s appeal. The action is brought by the plaintiff’, Yimont, as assignee of one O. O. Johnson, to recover for a personal injury alleged to have been sustained by the assignor by reason of the wrongful and negligent acts of the defendant. 1. practice: party ¡1 insfgnorin suit By assignee. The defendant moved that Johnson be made a party, but the court overruled the motion, and this constitutes the defendant’s ground of complaint. “When a ° 1 determination of the controversy between the Pai’ties before the court cannot be made without £he presence of other parties, the court must order them to be brought in.” Code, § 2551. The defendant contends that this is precisely such case. While it does not deny that the plaintiff may hold a nominal assignment of [516] Johnson’s claim for damages, yet it insists that it may not be a valid assignment, and, in fact, is not a valid assignment, and that, such being the fact, a determination of the action, either for or against the plaintiff, would not conclude Johnson, and that his presence, therefore, as a party, is ‘necessary for the defendant’s protection. We do not care to go into an extended consideration of the doctrine upon which the defendant relies. The assignment from Johnson to the plaintiff is set out in the plaintiff’s petition, and purports to convey all of Johnson’s interest, and we do not understand that the fact of the execution of the instrument is controverted. It may, it is true, be invalid for reasons which do not appear on its face. But the case has this peculiar feature, Johnson did'in fact appear in the action, and filed what he called a response to the defendant’s motion, setting up his sale and assignment of the claim to the plaintiff, and denying all ownership therein, or control of the prosecution thereof. After Johnson had thus appeared and put himself upon the record, there was, we think, no reasonable ground for sustaining the defendant’s motion, unless it might be for reasons connected wholly with the question as to the defendant’s right of removal to the federal court, and that we shall have occasion to consider hereafter. II. Whether such right of removal existed is a question presented by the plaintiff’s appeal. The petition for a removal shows that the defendant is a citizen of the state of Illinois, and, while it concedes that the plaintiff is a citizen of the same state, yet it avers that he is not the real party in interest, but that Johnson is, and that Johnson is a citizen of-the state of Iowa, and that by reason of this fact, in connection with the fact, that the amount in controversy is over $500, the. federal .court has jurisdiction, and the defendant a right- of removal.' For the purposes of the opinion, it might be conceded that the circuit courts of the United States may, in some cases-, [517] have jurisdiction on the ground of citizenship, even where all the parties are citizens of the same state. Possibly this would be so where the petition showed that the plaintiff was a merely nominal and passive party, having no interest in, nor right to control, the litigation, though, by reason of some provision of statute, a legal party, and where, also, the petition showed who the person beneficially interested in, and having the right to control, the litigation was, and where the petition for removal showed the citizenship of such person to be such as would give the federal court jurisdiction if the person were the plaintiff of record. In such case it may be that a court would be justified in deeming the person beneficially interested, and having the right to control the litigation, as the real plaintiff, so far as the question of federal jurisdiction is concerned. As supporting such doctrine, see Browne v. Strode, 5 Cranch, 303, and McNutt v. Bland, 2 Howard, 9. But these cases differ from the case at bar. The plaintiffs in those cases were mere conduits, designated by the law as such, and through whom the parties aggrieved were to seek their remedy. They were wholly passive. They had no right to commence the actions, nor the right to dismiss them when commenced by the parties in interest. 2 removal federal court: pMutftff benilciary oi not considered. In the case at bar, if the assignment is valid in such sense as to give the plaintiff a right of action anywhere, it appears to us least a trustee. Now, we understand that the authorities are agreed that, where an action is brought by a trustee, who is such in good faith, and has power to control the . . , . . , . ,. ,. , claim, the citizenship ox the persons beneficially interested, but not parties to the record, is not considered on a question of removal. If the trustee is a citizen of the same state of which the defendant is, federal jurisdiction is excluded. Coal Co. v. Blatchford, 11 Wall., 176; Knapp v. Railroad Co., 20 Wall., 123. Probably the defendant would not dispute this proposition. The objections raised by it go to the validity of the assignment. It disputes the [518] plaintiff’s trusteeship. It avers that the assignment is color-able and fraudulent, and-invalid for other , reasons. signee'aT*as" zénSup ofCltl" interest!7 m But, suppose the facts are as the defendant contends, do they constitute a ground for removal? Could the court below, after having found such facts, properly make an order of removal? We think not. If such were the facts, the plaintiff had no cause of action. He was not the real party in interest, and should go out of court. The defendant was entitled to something better than an order of removal. We do not see how the plaintiff could have interest and power enough to enable him to prosecute the action in any court, without its resulting in the exclusion of federal jurisdiction. This is not a case where the plaintiff could be regarded as a mere conduit, as in Browne v. Strode and McNutt v. Bland, above cited. If he were reduced to something less than a trustee, he would sustain no legal relation to the claim whatever. If the assignment, for instance, had provided that the object of it was merely to give the assignor the right to use the plaintiff’s name, while he was to remain passive, with neither interest nor power, he should not be allowed to maintain the action anywhere. The controversy would be decided upon such facts appearing, and there would be nothing to remove. Now, under the facts, as the defendant avers them to be, it appears to us. that the case is substantially the same. We think that on the defendant’s appeal the judgment must be affirmed, and, on the plaintiff’s appeal, Reversed.