Page:Federal Reporter, 1st Series, Volume 10.djvu/324

312 FEDERAL REPORTER. �Middleton v. Middleton, 7 Week. N. 144. So, if an action is brought against partners, the case cannot be removed if one of the partners is a citizen of the same state as the plaintiff. Ruble v. Hyde, 3 Fed. Eep. 330. — [Ed. ���Evans v. Faxon »nd others. �(Circuit Court, If. D. Illinois. February 13, 1882 ) �I. Remotal of Cause — Rkmand. �When the jurisdiction of thia court is not clear, from the facts as presented, as to whethor one of the defendants, a citizen of the same state as the plaintiff, is a necessary or only a formai party, and there is not a controversy wholly between citizens of different states and which can be fully determined as be- tween them, the case will be remanded to the state court. �George C. Fry, for plaintiff. �McConnell, Raymond e Rogers, for defendants. �Drdmmond, C. J. The facts in this case, as disclosed by the bill. are that the plaintiff, in 1873, being indebted to Walter Faxon, exe- cuted a deed of trust to Joel D. Harvey to secure the indebtedness, f.nd by the terms of the deed of trust the trustee was authorized, upon the non-payment of any of the notes representing the indebted- ness, to cause the real property named in the deed of trust to be sold, upon giving notice in the manner pointed out in the deed. The money becoming due and unpaid, the trustee in 1879, at the request of the creditor, gave notice of the sale of the property, and it was accordingly sold to Edwin Faxon for |2,400; and the bill alleges that the title stands on the record in his naine. A bill was filed in the state court on the fifteenth of September, 1881, by the plaintiff, to redeem the land, and to set aside the sale because of informalities, and a non-compliance with the conditions prescribed in the deed of trust, on which alone the power to sell was to be exercised. On the fifth day of November, 1881, the trustee answered the bill, denying that there were any informalities, or that there was a non-compliance with the conditions prescribed in the deed of trust. The plaintiff and the trustee were and are citizens of Illinois. Edwin and Walter Faxon were and are citizens of Massachusetts. The two latter, on entering their appearanee in the state court on the sixteenth day of December, 1881, made an application to remove the case to this court, and filed the proper petition and bond, alleging that the trustee ��� �