The petition for removal was filed under the last clause of section 2 of the act of 1875, which is as follows: 'And when in any suit * * * 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 to the circuit court of the United States for the proper district.'
As we have already said at this term in Ayres v. Wiswall, 112 U.S. 192, S.C.., ante, 90 'the rule is now well established that this clause in the section refers only to suits where there exists a separate and distinct cause of action, on which a separate and distinct suit might have been brought and complete relief afforded as to such cause of action, with all the parties on one side of that controversy citizens of different states from those on the other. To say the least, the case must be one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or more states on one side and citizens of different states on the other, which can to fully determined without the presence of the other parties to the suit as it has been begun.' Hyde v. Ruble, 104 U.S. 407; Fraser v. Jennison, 106 U.S. 191; S.C.. 1 SUP. CT. REP. 171.
In the present case all the defendants are sued jointly and as joint contractors. There is more than one contract set out in the complaint, and there is, therefore, more than one cause of action embraced in the suit, but all the contracts are alleged to be joint and binding on all the defendants, jointly, and in the same right. There is no pretense of a separate cause of action in favor of the plaintiff, and against the Louisville & Nashville Company alone. The answer of the company treats the several causes of action alike, and akes the same defense to all. For the purposes of the present inquiry, the case stands as it would if the complaint contained but a single cause of action. The claim of right to a removal is based entirely on the fact that the Louisville & Nashville Company, the petitioning defendant, has presented a separate defense to the joint action by filing a separate answer, tendering separate issues for trial. This, it has been frequently decided, is not enough to introduce a separate controversy into the suit, within the meaning of the statute. Hyde v. Ruble, supra; Ayres v. Wiswall, supra. Separate answers by the several defendants sued on joint causes of action may present different questions for determination, but they do not necessarily divide the suit into separate controversies. A defendant has no right to say that an action shall be several which a plaintiff elects to make joint. Smith v. Rines, 2 Sum. 348. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is, for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. Here it is certain joint contracts entered into by all the defendants for the transportation of property. On the one side of the controversy upon that cause of action is the plaintiff, and on the other all the defendants. The separate defenses of the defendants relate only to their respective interests in the one controversy. The controversy is the case, and the case is not divisible.
It is said, however, that by the New York Code of Civil Procedure, § 1204, 'judgment may be given for or aginst one or more plaintiffs, and for or against one or more defendants,' and under this it has been held that when several are sued upon a joint contract, and it appears that only a portion are bound, the plaintiff may recover against those who are actually liable. The same rule undoubtedly prevails in many other states, but this does not make a joint contract several, nor divide a joint suit into separate parts. It may expedite judicial proceedings and save costs, but it does not change the form of the controversy; that is to say, the case. The plaintiff can still sue to recover cover from all, though he may be able to succeed only as to a part. The order remanding the case is affirmed.
BLATCHFORD, J., took no part in the decision of this case.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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