Page:Federal Reporter, 1st Series, Volume 8.djvu/114

100 FEDERAL REFOBTEB. �aacewith its opinion, abandoned its claitn to a lien, — the only claim that affeoted the defendant Litohfield, — it was certainly error for tho court to allow Litchfield to set up a wholly new claim against it, and thus defeat its right to have the cause remanded, — the only con- sideration upon which it dismissed its claim of lien. Considering the matter, therefore, in the light of Mr. Justice Miller's opinion alone, the court ought to have denied the application for leave to amend and file a cross-bill. The motion to remand ought to have been sus- tained upon the withdrawal of the iClaim of lien by the plaintiff ; for there was then nothing whatever before the court but a controversy between two citizens of the state of lowa. But we areof opinion that the same conclusion might be reached by a different course of reasoning. We incline to the opinion that the original motion to remand ought to h.'ve been sustained without any conditions whatever. What was the case? Let us assume that a suit was pending in the state court, in which there were two distinct and independent oontroversies, — one between two citizens of lowa, and the other between the plaintiff and a citizen of New York. Litohfield, the citizen of New York, was not a party to the original suit in the state court. No judgment which could have been rendered in that court could have affected him. If he had not voluntarily intervened, any judgment in that forum, affect- ing his title to the land, could have been questioned by him by an independent bill in equity in this court; but Litchfield did iutervene in the state court, as he had a right to do under the state practice, and he thus by his own act brought his rights into question in the state court. Thus arose the double controversy in question. Mr. Litchfield then removed the suit with this dual controversy here, and the question is, was it competent for this court to overrule the motion to remand, and to hear and determine the controversy in the suit be- tween two citizens of lowa, as well as the controversy between the plaintiff, a citizen of lowa, and the defendant Litchfield, a citizen of New York ? �It is of no avail whatever to say that the defendant navigation Company is insolvent, and therefore a mere nominal party, since Litchfield will be compelled to pay any sum that may be adjudged against the land. The plaintiff demands a personal judgment against the navigation company, and a party has a perfect right to judgment against his insolvent debtor, if he chooses to insist upon it. More- over, a defendant who is insolvent to-day may become quite solvent in the future. Lastly, we have no evidence of the insolveucy of the ��� �