Page:Federal Reporter, 1st Series, Volume 8.djvu/119

lOWA HOMESTEAD CO. V. DES MOINES NAVIGATION, ETC., 00. 105 �brought them into court by proper service. He unneeessarily united in one suit oontroversies between himself and a citizen of the same state with controversies between himself and citizens of other states. These controversies, as the court holds, were distinct and independ- ent. He could not, by so doing, deprive the non-resident defendants of their right to have their controversy determined in the federal court; and he could not complain if his cause of action against the resident defendant was dismissed. The supreme court does not point out distinctly what is to be done with the controversy between the plaintiff and the citizen of the same state with himself, but it may be inferred, I think, from the closing paragraphs of the opinion, that that controversy may be disposed of by some form of amendlne'iit to the pleadings, without any determination of it upon its rnerits. I see no reason why, in a case like that, the bill might not be dis- missed as to the controversy between citizens of the same state. But, however this may be, our judgment in the present case is not affected by the decision in Bamey v. Latham. Our order to remand stands upon special grounds, entirely suflSoient, in our judgment, and wholly independent of the decision referred to. It is noticeable that the supreme court puts its decision in Bamey v. Latham entirely upon the construction of the second clause of the second section of the act of March 3, 1875, without any reference to the constitutional difficulty. There may be no doubt about the construction of that clause, and yet the constitutional difSculty may remain. The decision seems to have been by a nearly-equally-divided court ; the chief justice, Mr. Justice Miller, and Mr. Justice Field, dissenting. �I am authorized to say that Judge McCrart concurs in the conclu- sion reached in the foregoing opinion. He bas not seen the opinion, and is not responsible for any of its reasonings. ��� �