Baillie v. Backus

WOLVERTON, District Judge (after stating the facts as above). Two questions are presented for decision, namely, whether the petition for removal fr.oni the state court was presented within the time the defendant Backus was required to answer, and, in connection therewith, whether Backus had been properly served with summons, and whether there is a separable controversy as to Backus. [1] A brief analysis of the bill of complaint will suffice to determine whether a separable controversy exists as to Backus. The plaintiff and Backus are stockholders in the Columbia Gold Mining Company; plaintiff owning 5 per cent, of the capital stock, and Backus, or certain holding companies promoted by him and now under his complete control, owning and holding the other 95 per cent. Having control of the stock, Backus controls the affairs of the Mining Company, which it is asserted he controls to the detriment of both the plaintiff and the company. : According to the bill, the E. W. Backus Dumber Company and the Backus-Brooks Company were both promoted by Backus, and these companies and Backus and other officers thereof have misappropriated funds of the Mining Company, and converted the same to their own use and benefit, resulting in a failure to account to plaintiff for his proper proportion of the profits of the Mining Company. The complaint then goes on with minute detail to state how the misappropriations came about, sometimes through the machinations of Backus, sometimes through the acts of one or other of the defendant companies other than the Mining Company, and in some things the other officers of these companies having played a part. It is as though Backus and these two Minnesota corporations were charged as conspirators to loot the treasury of the Mining Company, and in carrying out the object of such conspiracy one conspirator would do one thing at one time, and another another thing at another time, but all working together for the common purpose. ' Thus it is alleged in one part of the bill that, of a surplus fund of $130,981.06 produced in the year 1899, the defendant Backus misappropriated $103,174.50 by charging the same to certain accounts, 16 in number, and in a following paragraph it is further alleged that at the same time Backus was fraudulently loaning to the corporation owned and controlled by him, and known as the Backus-Brooks Company, “the large sums of money above mentioned,” referring in part to the moneys misappropriated by charging the same to the 16 accounts mentioned in the preceding paragraph. In harmony with this idea, the defendants are in several parts of the bill jointly charged with participating in the misappropriations. And, taken as a whole, looking through the entire bill, the theory upon which it was drawn becomes apparent, and that is there was a joint participation by the defendants named, except Richardson, in a common scheme to withdraw the surplus funds of the Mining Company, with a view to preventing plaintiff from [716] obtaining his just proportion of the profits rightly coming to him; the defendant Backus controlling at the same time the wrongful action of the Mining Company. Thus the several corporation defendants are all actors, though controlled by Backus, but all are separate entities, including Backus, working to a common unlawful purpose; and it does not lie in the mouth of Backus to say that he is acting independently of the corporations, when they are controlled by his initiative. [2] The right of removal depends upon the case disclosed by the pleadings, when the petition therefor is filed. Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514. [3] The principle governing the question of removal involved here is very clearly stated in Boyd v. Gill (C. C.) 19 Fed. 145, 148: “It does not necessarily follow that a controversy is wholly between a plaintiff and each one of several defendants, and can be fully determined as between them, merely because such a controversy might have been presented If the plaintiff had elected to present it in that form. The controversy in a suit is the one which is actually presented, not the one that might have been. It is not wholly between the plaintiff and one of the -defendants because it might have been if the plaintiff had so elected. Nor can a controversy be fully determined between a plaintiff and one of the defendants when in the form and substance which it has assumed the plaintiff insists, and has a right to insist, that so far as he is concerned it shall be determined as to both of the defendants. The controversy is the claim in form and substance as it is presented for determination; and if a joint reepvery against several defendants is claimed upon a cause of action which justifies a joint recovery, the controversy is between the plaintiff and all the defendants against whom the claim is asserted.” It was determined in that case that there was a separable controversy, because directors of a corporation were joined against whom a separate action could have been maintained, and the prayer of the bill was agáinst each defendant for a several accounting. What is meant by separate causes of action, not separable controversies, is very well illustrated in Barney v. Latham, supra, where there were joined in the same bill a cause about land and another about money. See, also, Hyde v. Ruble, 104 U. S. 407, 26 L. Ed. 823. Now, the bill of complaint in the present case does not seek a separate accounting, but an accounting by all the parties alleged to have been engaged causing the misappropriations, and,, as appears from the theory of the bill, the cause is one against ail the parties involved in misappropriating the funds of the Mining Company. Such is the case brought by plaintiff, and by it he is entitled to have tire suit proceed in the forum of his choice. Separate causes of action'are not joined, but only a particularization of different items of misappropriation, all entering into and forming elements of the general accounting demanded. [4] Another contention is that the Mining Company should be aligned on the side of the plaintiff, and when so aligned the right of removal would exist without question. But the contention is precluded by the holding of the Supreme Court of the United States, and of the Court of Appeals of this Circuit, in analogous cases. New Jersey Central Railroad Co. v. Mills, 113 U. S. 249, 5 Sup. Ct. 456, 28 L. Ed. 949; East Tennessee, etc., Railroad v. Grayson, 119 U. S. 240, 7 Sup. Ct. [717] 190, 30 L. Ed. 382; MacGinniss v. Boston, etc., Min. Co., 119 Fed. 96, 55 C. C. A. 648. Being satisfied that under the bill of complaint, there exists no separable controversy as to Backus, the questions respecting service and the time in which application was made for removal become wholly immaterial for a determination of plaintiff’s right to have the cause remanded. The preliminary injunction heretofore issued by this court will therefore be dissolved, and the cause remanded to the state court from whence it came.