abate or restrain a nuisance, as distinguished from an action for damages, all persons maintaining structures or carrying on operations whose effect mingles and combines in contributing to the injury to the plaintiff's property, may be properly joined as defendants, although each transacts his own business separately and independently from the others. The Débris Cases (C. C.) 16 Fed. 25; Warren v. Parkhurst, 186 N. Y. 45, 78 N. E. 579, 6 L. R. A. (N. S.) 1149; Kingsbury v. Flowers, 65 Ala. 479, 39 Am. Rep. 14; People v. Ditch & Min. Co., 66 Cal. 138, 4 Pac. 1152, 56 Am. Rep. 80; Woodyear v. Schaefer, 57 Md. 1, 40 Am. Rep. 419. In People v. Oakland Water Front Co., 118 Cal. 234, 248, 50 Pac. 305, in which it was held that a demurrer would lie for misjoinder, the structures maintained by the different defendants which it was sought to abate as an obstruction to navigation were not only entirely separate and independently maintained, but had obviously no joint or combined effect upon the navigation, the effect of each being entirely separate and distinct from that of the others. 3. The fact that the Tennessee Copper Company is not suable in this case, over its objection, does not require the dismissal of the suit as to the Ducktown Company. It is well settled by the weight of authority that when jurisdiction otherwise exists in a Circuit Court in a suit against several defendants, who might be sued either separately or jointly, the right of one of the defendants to object to the local jurisdiction of the court on the ground that it is brought in a district in which neither he nor the plaintiff resides, is a privilege personal to himself, which he alone can raise, and in his behalf only, and that upon the dismissal of the suit, as to him, upon his motion, where he is not an indispensable party to the suit, it will not be dismissed as to the remaining defendants properly before the court. Bensinger Cash Reg. Co. v. National Cash Reg. Co. (C. C.) 42 Fed. 81; Smith v. Atchison, T. & S. F. R. Co. (C. C.) 64 Fed. 1; Dominion National Bank v. Cotton Mills (C. C.) 128 Fed. 181; Schiffer v. Anderson (C. C. A., 8th Circuit) 146 Fed. 457, 76 C. C. A. 667. And jurisdiction of the suit will likewise be retained when, although one of the defendants is a citizen of the same state with the plaintiff, whose presence would destroy the requisite diversity of citizenship, the suit has been dismissed as to him without prejudice (Smith v. Cotton Oil Co. [C. C. A., 5th Circuit] 86 Fed. 359, 30 C. C. A. 103), or he has neither been served with process nor appeared (Doremas v. Bennett, 4 McLean, 224, 7 Fed. Cas. 916, Fed. Cas. No. 4,001). Nor can a defendant served with process avail himself of a want of jurisdiction as to another person named in the writ who is severed from him and no longer to be considered a defendant in the case. Craig v. Cummings, 2 Wash. C. C. 505, 6 Fed. Cas. 724, Fed. Cas. No. 3,331. Therefore, since each of the defendants in the present suit might have been sued severally as well as jointly, People v. Ditch & Min. Co., 66 Cal. 138, 4 Pac. 1152, 56 Am. Rep. 80, and under the averments of the bill the Tennessee Copper Company is clearly not an indispensable party to the relief prayed in reference to the nuisance alleged to exist upon the property of the Ducktown Company, the case may, under the 179 FEDERAL REPORTER. foregoing authorities, be proceeded with against the latter company alone, although dismissed as to the former. 4. The fact, urged in argument, although not set out as one of the grounds of the motion to dismiss, that the plaintiffs, being citizens of New York and West Virginia, have sued two defendants, one of whom is a citizen of New Jersey and the other an alien corporation, does not deprive this court of jurisdiction. Section 1 of the act of 1875, as amended by section 1 of the act of 1888, confers jurisdiction upon the Circuit Courts in suits "in which there shall be a controversy between citizens of different states * or a controversy between citizens of state and foreign * * citizens." The plain object of this provision is to confer upon the Circuit Courts jurisdiction of all controversies between citizens of a state and citizens either of another state or a foreign nation in which the requisite jurisdictional amount is involved. And while it may be said from a somewhat metaphysical point of view, that in a suit brought by a citizen of one state against two defendants, one of whom is a citizen of another state, and the other an alien, the controversy, considered in its entirety, is neither wholly between citizens of different states nor between a citizen of a state and a foreign citizen, yet as such controversy in each and all of its elements as between the plaintiff and each of the defendants separately, clearly comes within the provisions of the act, the suit is not, under a just construction of the statute and in view of its plain intent, to be excluded from the jurisdiction of the Circuit Court merely because of the joinder of the two defendants in a single action. To hold otherwise would, I think, be to give the language of the statute a strained and narrow construction, not required by its letter, and defeating its manifest purpose of vesting in the Circuit Courts jurisdiction of controversies between these different classes of persons. This view is in accordance with the clear weight of authority. In Ballin v. Lehr (C. C.) 24 Fed. 193, and Roberts v. Ry. & Nav. Co. (C. C.) 104 Fed. 577, affirmed in a carefully considered opinion in Roberts v. Ry. & Nav. Co. (9th Circuit) 121 Fed. 785, 58 C. C. A. 61, in each of which the underlying question involved in determining the right of removal to the Circuit Court was whether the entire suit was one of which the Circuit Courts were given jurisdiction by sections 1 of the acts of 1875 and 1888, it was held that a suit brought by a citizen of one state against two defendants, one of whom is of another state and the other an alien, is a suit of which the Circuit citizen Courts are given jurisdiction and which, as such, is removable to the Circuit Court on petition of the defendants. See, also, Rateau v. Bernard, 3 Blatchf. 242, 20 Fed. Cas. 305, Fed. Cas. No. 11,579. The case of Tracy v. Morel (C. C.) 88 Fed. 801, in which the statement of a contrary doctrine, appearing in Black's Dillon on the Removal of Causes (section 84, p. 131), which is not, however, found in the earlier editions of Dillon's Removal of Causes, is approved, without discussion, is clearly not supported by the cases of Hervey v. Illinois Mid. Ry. Co., 7 Biss. 103, 12 Fed. Cas. 60, Fed. Cas. No. 6,434, and King v. Cornell, 106 U. S. 395, 1 Sup. Ct. 312, 27 L. Ed. 60, which are cited as stating the same rule. The Hervey Case involved merely the obvious proposition that a suit could not be removed under the act of 1875 on the ground of a separate controversy "wholly between citizens of different states" when it appeared that alien parties were also interested in the alleged separate controversy, there being, it is to be noted, no provision in that act for the removal of a suit on the ground of a separate controversy between citizens of a state and aliens; and in King v. Cornell, it was merely held that under the act of 1875 an alien had no right of removal on the ground of a separate controversy. I therefore conclude, both upon principle and the weight of authority, that a suit brought by a citizen of one state against a citizen of another state and an alien as defendants, involving the requisite jurisdictional amount, is within the jurisdiction of a Circuit Court of the United States. Furthermore, even if there had been originally a jurisdictional defect by reason of the joinder of the Tennessee Copper Company as a codefendant with the Ducktown Company, this objection would, it seems, be cured under the doctrine of Smith v. Cotton Oil Co., and other cases hereinabove cited, by the dismissal of the suit against the Tennessee Copper Co., leaving in the suit merely a controversy between citizens of New York and West Virginia as complainants and an alien corporation as defendant, of which a Circuit Court has undoubted jurisdiction. 5. The objection to the jurisdiction set out in the motion to dismiss in reference to the amount in controversy, has been cured by the amendments made in the bill. No other objections being pointed out by the Ducktown Company's motion to dismiss, it results that the motion must be overruled. An order will accordingly be entered dismissing the suit as to the Tennessee Copper Company in accordance with this opinion, and overruling the motion of the Ducktown Sulphur, Copper & Iron Com pany. HARRIS-WOODBURY LUMBER CO. v. COFFIN et al. (Circuit Court, W. D. North Carolina, at Asheville. April 28, 1910.) 1. QUIETING TITLE (§ 44*)—ACTIONS-BURDEN OF PROOF OF TITLE. In suits in equity to quiet title or remove a cloud, the burden is upon the complainant to show that he is the lawful owner of the premises involved in the controversy. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. § 89; Dec. Dig. § 44.*] 2. CORPORATIONS (§ 630*)-EFFECT OF DISSOLUTION-NEW JERSEY STATUTE. A New Jersey corporation, whose charter has been annulled by proclamation of the Governor for nonpayment of taxes, may thereafter sue or be sued in its corporate name in relation to any matter necessary or proper to the orderly settlement of its affairs, by virtue of Corporation Act N. J. (P. L. 1896, p. 295) §§ 53-55, which provide that all dissolved corporations shall be continued bodies corporate for the purpose of prosecuting and defending suits and of enabling them to settle and close their For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 179 F.-17 affairs, and that the directors, who are constituted trustees for such purpose, may sue or be sued by the corporate name. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2482–2486; Dec. Dig. 630.*] 3. CORPORATIONS (§ 691*)-POWERS-LAW GOVERNING. The powers of a corporation, although doing business in a state other than that of its creation, are governed by the law of its domicile, and its power to sue or be sued after its former dissolution is determined by such law, and not by that of the state in which the suit is brought. [Ed. Note. For other cases, see Corporations, Dec. Dig. § 691.*] In Equity. Suit by the Harris-Woodbury Lumber Company against E. G. Coffin and D. Samuel White. On exceptions to report of special master. Exceptions overruled, and decree for complainant. Merrimon & Merrimon and C. C. Cowan, for complainant. R. C. Strudwick, Norwood & Norwood, Wm. P. Bynum, Jr., and Justice & Broadhurst, for defendants. PRITCHARD, Circuit Judge. This is a bill in equity filed by the complainant for the purpose of removing a cloud upon its title. The complainant alleges that it is the owner in fee and in actual possession of a tract of mountain land containing 78,000 acres, and deraigns its title, showing grant from the state and various mesne conveyances down to a deed to the Foreign Hardwood Log Company in 1894, and then deed from the said company to the Tuckaseigee Timber Company in 1895, and deed from the Tuckaseigee Timber Company to the Whittier Lumber Company, a New Jersey corporation, in 1896, and deed to complainant in 1906 by a commissioner appointed by this court to sell said land pursuant to a decree rendered in a proceeding instituted in this court in 1906 to foreclose a mortgage executed by the Whittier Lumber Company. The complainant further alleges that in 1904 E. G. Coffin and F. M. McDonald, trading under the firm name of Coffin & McDonald, instituted a suit in the superior court of Swain county, N. C., against one Charles R. Flint, and caused an attachment to issue in their favor from said court against said Flint, and to be levied. against said lands, pretending that he was the owner thereof, or had an interest therein, which suit was removed to this court, and in 1907 a judgment was rendered therein for $85,000 in favor of Coffin & McDonald, and that Coffin & McDonald, claiming that said judgment was a lien upon said lands because of said attachment, procured a writ of execution to issue from this court, and by virtue thereof the marshal sold at public auction on May 4, 1908, all the right, title, and interest of said Charles R. Flint in and to said lands to said E. G. Coffin, the last and highest bidder, for $100, and that said Coffin assigned his bid to the defendant D. Samuel White, to whom the marshal made a deed, which was filed and recorded in Swain county, N. C., where the land is situated. The complainant further alleges that the defendants, E. G. Coffin and D. Samuel White, claimed to be the owners of said lands, or to have an interest therein, because of said deed, and had repeatedly threatened to enter upon said lands under their purported claim and remove the timber therefrom, and to otherwise injure and For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes molest complainant, and the complainant prays for a decree quieting its title, canceling said deed to the defendant D. Samuel White, and perpetually enjoining the defendants from asserting or claiming any interest or estate in said lands by reason thereof. The defendants in their answer admitted that the title had been properly deraigned by the complainant down to the deed to the Foreign Hardwood Log Company, but denied that the complainant was the owner of said lands, or had any right to the possession thereof. They allege That Charles R. Flint furnished the money for the purchase of said lands, and had the title made to the Foreign Hardwood Log Company, a "dummy" corporation under his control, and that said corporation held the title in trust for Charles R. Flint, as resultant beneficiary and owner of the equitable estate therein, and that afterward, for the purpose of cheating and defrauding said E. G. Coffin and F. M. McDonald, Charles R. Flint caused the Foreign Hardwood Log Company to make a deed for said lands to the Tuckaseigee Timber Company, another "dummy" corporation controlled by him; but the defendants denied that any title passed by such deed, both because of its fraudulent purpose and because the Tuckaseigee Timber Company was never lawfully organized and was never capable of owning real estate or holding title thereto. That subsequently said Flint, still designing to cheat and defraud said Coffin and McDonald and his other creditors, caused the Tuckaseigee Timber Company to make a deed for said lands to another "dummy" corporation, the Whittier Lumber Company, formed by employés under his control, but that no title passed, because the Tuckaseigee Timber Company had no power to receive or convey the title, and because the Whittier Lumber Company was never properly organized, and never became a legal entity capable of holding title to real estate; but, if the Whittier Lumber Company did acquire any title by said conveyances, it held the same for the benefit of Coffin and McDonald and other creditors of Flint, because said conveyances were made for the purpose of cheating and defrauding said creditors. That the Whittier Lumber Company, or those who controlled it, for Flint, fraudulently pretended to execute a mortgage of said lands as security for an alleged issue of bonds, but that said bond issue was fraudulent, without consideration, and done to enable Flint to further incumber the title for the purpose of cheating his creditors, and said lands never passed into the hands of bona fide purchasers. That the complainant, with full knowledge of all these things, acquired possession of said lands, and fraudulently procured the institution of the suit to foreclose the mortgage executed by the Whittier Lumber Company, and misled the court by collusion with the Whittier Lumber Company, and procured a decree ordering sale of the lands, and at such sale pretended to become the purchaser of said lands, using said bonds in making payment. That there was an understanding with complainant and Flint whereby the actual payment for said lands depended upon the complainant's establishing title thereto by the conveyances set out in the complaint, and that this proceeding by the complainant is in furtherance of said nefarious scheme, and that complainant is not entitled to the aid of a court of equity in carrying it out. That the defendants were the real owners of said lands, having |