MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.
The first question to be decided is whether the Circuit Court of the United States lawfully acquired and retained jurisdiction of the case. The determination of this question really
The Judiciary Act of September 24, 1789, c. 20, § 12, authorized "a suit" commenced in any state court "by a citizen of the State in which the suit is brought against a citizen of another State" to be removed by the defendant into the Circuit Court of the United States upon a petition filed in the state court. 1 Stat. 79. Under that statute, it was held to be essential to the jurisdiction of the Circuit Court that all the defendants should be citizens of a different State from any of the plaintiffs. Strawbridge v. Curtiss, 3 Cranch, 267; Coal Co. v. Blatchford, 11 Wall. 172; Barney v. Latham, 103 U.S. 205, 209.
The earliest act of Congress for the removal of causes on the specific ground of prejudice and local influence was the act of March 2, 1867, c. 196, by which "where a suit is now pending, or may hereafter be brought, in any state court, in which there is a controversy between a citizen of the State in which the suit is brought and a citizen of another State," the suit might be removed into the Circuit Court of the United States by "such citizen of another State, whether he be plaintiff or defendant," upon filing a petition and affidavit in the state court. 14 Stat. 558.
Under that act, it was held, after able arguments and full consideration, that the phrase "a suit in which there is controversy between a citizen of the State in which the suit is brought and a citizen of another State" had the same meaning as the shorter description, in the act of 1789, of "a suit between" such parties; that each term implied a proceeding in a court of justice by a party plaintiff against a party defendant; and consequently that all the defendants must be citizens of other States from any of the plaintiffs, and that one of several defendants could not remove the suit. Case of Sewing Machine Cos., 18 Wall. 553, 585; Vannevar v. Bryant, 21 Wall. 41; Blake v. McKim, 103 U.S. 336, 338, 339.
The act of 1867 was substantially reënacted in clause 3 of
The act of March 3, 1875, c. 137, § 2, authorized any suit in a state court "in which there shall be a controversy between citizens of different States" to be removed by "either party" into the Circuit Court of the United States; and added this clause: "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 plaintiffs or defendants actually interested in such controversy may remove said suit into the Circuit Court of the United States." 18 Stat. 470.
Under that statute, it has been uniformly held that, in order to justify a removal of the suit because of "a controversy which is wholly between citizens of different States," the whole subject matter of the suit must be capable of being finally determined between them, and complete relief afforded as to the separate cause of action, without the presence of other persons originally made parties to the suit; and that when there was but one indivisible controversy between the plaintiffs and the defendants, as in the case of a suit for partition, the suit could not be removed by one of several plaintiffs or defendants. Blake v. McKim, 103 U.S. 336; Torrence v. Shedd, 144 U.S. 527; Bellaire v. Baltimore & Ohio Railroad, 146 U.S. 117; Wilson v. Oswego Township, 151 U.S. 56; Merchants' Cotton Press Co. v. Ins. Co. of North America, 151 U.S. 368.
The act of March 3, 1887, c. 373, corrected by the act of August 13, 1888, c. 866, was intended, as this court has often recognized, to contract the jurisdiction of the Circuit Courts of the United States, whether original over suits brought therein, or by removal from the state courts. It not only amends the act of 1875; but it allows to none but defendants the right to remove any case whatever, and, by new regulations of removals for prejudice or local influence, supersedes and repeals the earlier statutes upon this subject. 24 Stat. 553; 25 Stat. 434; Smith v. Lyon, 133 U.S. 315; Fisk v. Henarie, 142 U.S. 459; Tennessee v. Union & Planters' Bank, 152 U.S. 454.
This act, after other provisions which need not be stated, reënacts the last clause of section 2 of the act of 1875, above quoted, except that it omits the words "plaintiffs or." It then takes up the subject of the act of 1867, and enacts that in the case, defining it in the words of that act, "where a suit is now pending or may be hereafter brought, in any state court," a removal may be had, not, as under that act, by "such citizen of another State, whether he be plaintiff or defendant," but only by "any defendant being such citizen of another State;" and not upon petition to the state court and the mere affidavit of the petitioner to his belief in prejudice or local influence, but upon petition to the Circuit Court of the United States and "when it shall be made to appear to said Circuit Court" that prejudice or local influence exists.
Whether this act permits one of two or more defendants to remove any case which he could not have removed under earlier statutes is a question upon which there have been conflicting decisions in the Circuit Courts, and upon which we are not now required to express a definitive opinion.
Beyond doubt, the existing act, like every act which preceded
The present case was a suit for partition, to which all the plaintiffs and all the defendants were indispensable parties. Torrence v. Shedd, 144 U.S. 527; De la Vega v. League, 64 Texas, 205; Stark v. Carroll, 66 Texas, 393. Each and all of the defendants contested the rights which the plaintiffs asserted; the defendant Brady was a citizen of the same State as some of the plaintiffs; and the only prejudice and local influence which he alleged as a ground of removal was between himself and other defendants. For this reason, independently of other reasons urged against the validity of the removal, Brady's removal of the cause into the Circuit Court of the United States was not warranted by any of the acts of Congress on which he relied.
Brady, having wrongfully removed the case into the Circuit Court, must pay the costs in that court, as well as the costs of the three appeals to this court. Mansfield &c. Railway v. Swan, 111 U.S. 379; Torrence v. Shedd, and Tennessee v. Union & Planters' Bank, above cited.
Appeal of the plaintiff's sustained, and decree reversed, with costs of the three appeals against Brady; and case remanded to the Circuit Court, with directions to render judgment against him for costs in that court, and to remand it to the state court.