Opinion of the Court.

that the real controversy in the case was wholly between the plaintiff, and the Oswego township, and C. Montague, and could be fully determined between them without reference to the other defendants; that the railroad company and the Union Savings Association were, at the most, only nominal or formal parties.

The removal in this case was had under the second section of the act of 1875, but under which clause of that section does not distinctly appear. The first clause of the section relates to removals of controversies that are not separable, and in which all the parties on one side of the suit are citizens of different States from those on the other side, which is a necessary condition to enable the Circuit Court to take jurisdiction of the entire suit. Under this clause, all of the plaintiffs, if there are more than one, or all the defendants, there being more than one, must, in order to remove the suit, unite in the petition therefor; and it is settled by the authorities that to enable a suit to be removed under this first clause of the section, when the ground for removal is diversity of citizenship, the party to the suit on the one side, whether consisting of one or more persons, must have a state citizenship different from that of the party on the other side, whether consisting of one or more persons; and that, for the purpose of removing the suit, these parties may be placed "on different sides of the matter in dispute according to the facts," so that all those on one side will be "citizens of different States from those on the other,” and that this being done, those on either side may remove the suit, provided that all unite in the petition therefor.

The situation of the parties in this case, in connection with the relief sought by the petition, does not admit of placing the parties on different sides of the matter in dispute, so that those on one side will be citizens of different States from those on the other, for the purpose of removing the suit, unless it can be held that both the Memphis, Carthage and Northwestern Railroad Company, which was made a party defendant, and duly served, and the Union Savings Association, were merely nominal, formal, and unnecessary parties, as

Opinion of the Court.

these corporations were citizens of the same State as the plaintiff.

It is settled that the jurisdiction of the Federal courts will not be defeated by the mere joinder or non-joinder of formal parties. Wormley v. Wormley, 8 Wheat. 421, 451.

In Wood v. Davis, 18 How. 467, 470, where formal or nominal parties were united with the real parties to the litigation, it was held that such joinder would not oust the jurisdiction of the Federal court, if the citizenship of the real parties was such as to confer it, but, in speaking for the court, Mr. Justice Nelson said, in that case: "This is not a case of a stakeholder, or the holder of a deed as an escrow, where a trust has been created by the parties, which is sought to be enforced by one of them. In all such cases the trustee may be a proper party, as he has a duty to perform, and which the court may enforce, if improperly neglected or refused."

In Bacon v. Rives, 106 U. S. 99, where the complainants were citizens of the State in which the suit was originally brought, and the defendant, the real party to the controversy, against whom relief was sought, was a citizen of another State, his right to remove the suit to the Circuit Court of the United States was held not to be defeated upon the ground that the citizenship of another defendant, who was a stranger to that controversy, and who occupied substantially the position of a mere garnishee, was the same as that of the complainant. In that case, however, the relief sought was against a nonresident defendant, as the real party to the controversy. In the present case no relief is sought against the removing parties.

These authorities do not control in this case, for the reason that the relief sought by the plaintiff in his bill, or petition, was the recovery of the possession of the bonds held by the Union Savings Association. He sought no active or affirmative relief against any other defendant to the suit. He did not even make the Oswego township a party defendant. By his petition he raised no question whatever as to the validity of the bonds or the regularity of their issue. He alleged that they were regularly issued by the township of Oswego to the

Opinion of the Court.

Memphis, Carthage and Northwestern Railroad Company, and that by an arrangement between the railroad company and C. Montague, trustee, and Edward Burgess, they were placed in the possession of the Union Savings Association until Burgess should complete his contract with the railroad company, when the bonds were to be delivered to Burgess, or his assignee. The plaintiff, as his assignee, claimed that Burgess had complied with and completed his contract, thereby becoming the owner of the bonds, and entitled to their possession; and that thereafter he assigned his right, title, and interest in the same to the plaintiff, who by his petition only sought to recover possession of the bonds. The Union Savings Association, being the bailee or trustee of the bonds, was a necessary and indispensable party to the relief sought by the petition, and that defendant, being a citizen of the same State with the plaintiff, there was no right of removal on the part of Montague, or of the intervening defendant, the Oswego township, on the ground that the Union Savings Association was a formal, unnecessary, or nominal party.

Furthermore, under the allegations of the petition that the bonds had been issued to the Memphis, Carthage and Northwestern Railroad Company by the Oswego township, by authority of law, and that it had contracted with Burgess to pay him the bonds in question for work and labor performed and to be performed by him in the construction of its line of railroad, the railroad company was a proper, if not a necessary party, as it had an interest in the question whether Burgess had performed his contract and earned the bonds.

Considering the nature of the suit and the relief sought thereby, these defendants cannot be treated and regarded as purely formal and unnecessary parties. The character of the relief sought made the Union Savings Association, which occupied the position of a bailee or trustee, a necessary and indispensable party.

But can the removal be sustained under the second clause of the second section of the act of 1875, on the ground that the suit presented a separable controversy between the plaintiff

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and the parties applying for and securing the removal? We think not. The question whether there is a separable controversy warranting a removal to the Circuit Court of the United States must be determined by the state of the pleadings and the record of the case at the time of the application for removal, and not by the allegations of the petition therefor, or the subsequent proceedings which may be had in the Circuit Court. Barney v. Latham, 103 U. S. 205.

The original petition, in the present case, filed in the state court, and the relief sought thereunder, did not present a controversy which was wholly between citizens of different States, or one that could be finally determined as between the plaintiff and the removing parties, without the presence of the Union Savings Association, and could not, therefore, be removed separately or jointly by either Montague or the township of Oswego.

The fact that the Memphis, Carthage and Northwestern Railroad Company did not answer, but made default, is unimportant, and placed the parties in no different position with reference to a removal of the cause than they would have occupied if that company had answered, and either admitted or denied the rights of the plaintiffs. Putnam v. Ingraham, 114 U. S. 57, 59.

The petition filed in the state court did not present several causes of action, some of which were against the resident defendants and others against the non-resident defendants, but embraced a single cause of action and a single ground of relief. It did not, therefore, come within the authorities which allow a removal on the ground of a separable controversy such as entitled the non-resident defendants to remove the cause.

Without reviewing the authorities on the subject of removal of causes on the ground of separable controversies, within the meaning of the second clause of the second section of the act of 1875, we deem it sufficient to cite the following cases as fully sustaining the conclusion to which the court has arrived, that the pleadings in the case under consideration present no ground on which to base the right of removal. Brooks

Opinion of the Court.

v. Clark, 119 U. S. 502, 511; Brown v. Trousdale, 138 U. S. 389, 396; Torrence v. Shedd, 144 U. S. 527, 530.

In this last cited case Mr. Justice Gray, speaking for the court, sums up the authorities on the subject as follows: "But in order to justify such removal on the ground of a separate controversy between citizens of different States there must, by the very terms of the statute, be a controversy 'which can be fully determined as between them;' and by the settled construction of this section the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without the presence of others originally made parties to the suit."

Considering the character of the relief sought by the original bill, and the situation of the parties, it cannot be properly said that the whole subject-matter of the suit was capable of being finally determined between the plaintiff, on the one side, and Montague and the Oswego township, on the other, without the presence of the Union Savings Association, so as to warrant the removal as a separable controversy.

The cases of Thayer v. Life Association, 112 U. S. 717, St. Louis & San Francisco Railway v. Wilson, 114 U. S. 60, and Crump v. Thurber, 115 U. S. 56, are not distinguishable in principle from the present case. In the former case the situation of the parties was substantially the same as in the case under consideration, and it was held that the resident corporation, as the holder of the stock which the complainant sought to have transferred to himself, was such an indispensable party as would prevent the removal of the cause from the state to the Circuit Court.

We are, therefore, of opinion that the cause was wrongfully removed and that the motion to remand should have been sustained. The decree below is

Reversed with costs, and the cause remanded to the Circuit Court of the United States for the Eastern District of Missouri with directions to remand the suit to the state court from which it was originally removed.