By making defendants those who are necessary parties plaintiff, jurisdiction is not conferred upon a Federal Court, where, if they had been made plaintiffs, the necessary diversity of citizenship would not have existed.R : It has been held that a party whose claim is adverse to the complainant is on the opposite side of the controversy to him, although their relations are not hostile, and that the jurisdiction is not defeated because the complainant seeks to compel defendants, who are citizens of the same State, to litigate a dispute between them in the Federal Court, when the plaintiff has a cause of action against them both.5 The jurisdiction must appear on the face of the record. Where one of the parties is made a defendant merely because he has refused to join as a party plaintiff, he is considered to be on the same side of the controversy as the plaintiff, when the jurisdiction is determined; 7 unless there is a substantial 468, 25 L. ed. 593; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Evers v. Watson, 156 U. S. 527, 39 L. ed. 520; Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397); Dodge v. Perkins, Fed. Cas. No. 3,954 (4 Mason, 435); Burke v. Flood, 1 Fed. 541, 6 Sawyer, 220; Marvin v. Ellis, 9 Fed. 367; Sayer v. La Salle & P. Gaslight & Coke Co., 14 Fed. 69, 9 Biss. 372; Anderson v. Bowers, 40 Fed. 708; Brown v. Murray Nelson & Co., 43 Fed. 614; Mangels v. Donau Br. Co., 53 Fed. 513; Pittsburg, C. & St. L. R. Co. v. Baltimore & O. Ry. Co., 61 Fed. 705, 10 C. C. A. 20, 22 U. S. App. 359; Cilley v. Patten, 62 Fed. 498; Oberlin College v. Blair, 70 Fed. 414; Hutton v. Joseph Bancroft & Sons' Co., 77 Fed. 481; Reese v. Zinn, 103 Fed. 97; Boatmen's Bank v. Fritz len, C. C. A., 135 Fed. 650; Mirabile 3 Lindauer v. Compania Palomas, 4 Federal Mining & Smelting Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 187 Fed. 474.8 27.865. 5 Feidler v. Bartleson, C. C. A., 161 Fed. 30. But see First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969; cited infra, § 42. 6 Bell v. Ohio, Life Ins. Co., Fed. Cas. No. 1,261. 7 Edgerton v. Gilpin, Fed. Cas. No. 4,280 (3 Woods. 277); Missouri v. Alt, 73 Fed. 302; Johnson v. Ford, 109 Fed. 501; Einstein v. Georgia, S. & F. Ry Co., 120 Fed. 1008; Joseph Dry Goods Co. v. Hecht, C. C. A., 120 Fed. 760; Menefee v. Frost, 123 Fed. 633. See also Bland v. Fleeman, 29 Fed. 669; Woodrum v. Clay, 33 Fed. 897; Megibben's Adm'rs v. Perin, 49 dispute between him and the plaintiff as to the division of the proceeds, or some other question involved in the suit; in which case it has been held, that he is on the side of the controversy opposite to such plaintiff. It was said: that if the jurisdiction of the court would be ousted by making complainants all interested in obtaining the relief prayed, those who are citizens of the same State with the real defendants may refuse to join in the suit, and may be made defendants. In an action by two of three trustees against a corporation residing in another State, it was held, that the fact that one of the trustees, who refused to join as plaintiff in the suit, and was made a defendant, was a citizen. of the same State as the corporation, did not deprive the Federal court of jurisdiction, on the ground that the trustee residing in the same State with defendant was a necessary party plaintiff, since that trustee was made such in order that the rights of all interested parties might be determined in one proceeding.10 In a suit by taxpayers against county officers and bondholders, to enjoin payment of the bonds, the defendant officers were presumed to be on the same side of the controversy as the taxpayers.11 Complainant, a citizen of Iowa, filed a bill charging that a judgment had been fraudulently obtained against a city of Iowa, in favor of defendant, citizen of another State, by means of a combination between him and others not made parties to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and recorder of the city were made defendants, that they might be restrained from paying the judgment pendente lite, but there was no charge that they had participated in the fraud, or that they had any interest adverse to complainant. It was held: that, though there was no separate controversy between complainant and the defendant charged with the fraud, the other defendants were only nominal parties, their interest being in fact adverse to the latter; and their Fed. 183; approved as to this point upon reversal. Perin v. Megibben, C. C. A., 53 Fed. 86, 91. 8 Everett v. Independent School Dist. of Rock Rapids, 109 Fed. 697; Wood v. Deskins, C. C. A., 141 Fed. 500. 9 Wisner v. Ogden, Fed. Cas. No. 17,914 (4 Wash. 631). 10 Einstein v. Georgia Southern & F. Ry. Co., 120 Fed. 1008. See Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159; Georgia S. & F. Ry. Co. v. Einstein, C. C. A., 218 Fed. 55. 11 Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411; Anderson v. Bowers, 40 Fed. 708. It joinder as defendants could not affect his right to have the cause removed.12 A State granted to a county for school purposes swamp lands located in the county, which had been donated to the State by Congress. A bill was filed in a State court by the State, on behalf of the county school board, against the county and certain citizens of other States, to set aside conveyances of such lands. Defendants other than the county sought to remove the cause to the Federal court on the ground of diverse citizenship. It was held that the county was a necessary party, and, it and complainant being fellow citizens, the suit could not be removed.13 Where the validity of a mortgage is in question, the mortgagor is presumed to be on the same side of the controversy as the other parties who attack the mortgage.14 has been held: that in an action by a mortgagee to cancel certain mortgages and to foreclose a subsequent trust deed to the same property, although the cestuis que trustent have a common interest with plaintiff in showing the discharge of these mortgages, they are nevertheless his adversaries as to the other matters in controversy, and will not be rearranged as parties plaintiff, so as to show diversity of citizenship.15 It has been held that in a suit for a partition, where all the defendants were citizens of different States from that of the plaintiffs' citizenship, there should be no re-alignment of parties to defeat the jurisdiction because there were disputed questions in the case between the plaintiffs, which did not appear in the bill, although they might subsequently arise and be determined in the suit.16 Where one tenant in common brought a suit against his co-tenant and others for partition of the land held in common, and to quiet the title as against claims of the defendant. other than his co-tenant, but did not press it as a bill for partition; it was held that it might be sustained as a bill to quiet the title of the complainant's undivided interest, notwithstanding there was a want of diverse citizenship between him and 12 May v. St. John, 38 Fed. 770. 13 Missouri v. New Madrid County, 73 Fed. 304. 14 Removal Cases, 100 U. S. 457, 469, 25 L. ed. 593; Wolcott v. Sprague, 55 Fed. 545; Boatman's Bank v. Fritzlen, C. C. A., 135 Fed. 650, 658, 660, reversing 128 Fed. 608; United States Mortg. Co. v. McClure, 70 Pac. 543; 42 Or. 190. 15 Springer v. Sheets, 115 N. C. 370, 20 S. E. 469. 16 German Sav. & Loan Soc. v Tull, C. C. A., 136 Fed. 1, 10 one defendant, his co-tenant.17 In a suit to set aside part of a will and for a partition of the property thereby devised a defendant who would share in the partition but who was a legatee under the will was considered as upon the side of the controversy opposite to that of plaintiffs.18 Complainants filed a bill in a Circuit Court of the United States in California against defendants, who were citizens of that State alleging that complainants were heirs at law of a decedent from whom, prior to his death, one of the defendants, who was also a brother and one of his heirs, had procured a conveyance of all his property without consideration, which was invalid by reason of the decedent's insanity; that subsequently such defendant, who was insolvent, had conveyed such property to his co-defendant in payment of an antecedent indebtedness. The prayer of the bill was that the conveyances be set aside as to such shares of the property as would have been inherited by complainants. It was held, that the court could not determine from such allegations and prayer that the interest of the defendant, who was a co-heir with complainants, would be best served by their success, so as to require such an arrangement of parties as would make him a complainant, and defeat the court's jurisdiction; there being no proof of fraud or collusion by him and complainants. 19 In a suit to set aside a marriage and for a partition of the dead husband's land where the sole defendant was his wife, a citizen of West Virginia, who had qualified as administratrix of his estate, it was held that since all the heirs were citizens of Pennsylvania there could be no jurisdiction unless they filed a disclaimer of all right to attack the validity of the mar riage.20 In a suit by a wife's administrator to set aside a deed. given by her and her husband and a second deed by such grantee to another it was held that her husband although made a defendant was on the same side of the controversy as the plaintiff.21 In a suit by heirs against the executor to secure a construction of the will, contending that it gave the executor the residuary estate 17 Morse v. South, 80 Fed. 206. But see German Savings & Loan Soc. v. Tull, C. C. A., 136 Fed. 1. 18 Sutton v. English, 246 U. S. 19 Reavis v. Reavis, 98 Fed. 145. 20 Hastings v. Douglass, 249 Fed. 378. 21 Grigsby v. Miller, 231 Fed. 521. in trust for them and another heir whose administrator was joined as defendant; it was held that such administrator was on the plaintiff's side of the controversy.22 In a garnishee proceeding after judgment, it was held, that the judgment debtor was on the same side of the controversy as the judgment creditor.23 In a suit by contractors against their bondsman, the person who had employed them and claimants against the balance due them; it was held that the bondsman was on the plaintiff's side of the controversy.2 24 In an action on a bond secured by a mortgage, brought by citizens of one State against the citizens of another, one of the defendants, by her answer, prayed that the mortgage and bond be declared valid and foreclosed for her benefit and that of plaintiffs. The bond and mortgage were not divisible. All the defendants, including the one praying for relief, were citizens of the same State. It was held, that the Federal Court had no jurisdiction as it was substantially an action between citizens of the same State.25 An Ohio corporation filed a bill in a Federal Court in West Virginia against B., as trustee and individually, M., A., P., K., and the personal representative and heirs of G., all of whom were citizens of West Virginia, and a Pennsylvania corporation, alleging that land owned by plaintiff and by K. and G. was conveyed to B., as trustee, to sell, and pay the proceeds to plaintiff, K., and G.; that B. conspired with M., P. and A., who, on G.'s death qualified as his personal representative, and pursuant thereto, the value of the land having greatly increased, sold it to M. for much less, fraudulently concealing from plaintiff the fact of the increase; that the consent of K. to the sale was obtained by permitting him to retain a one-fifth interest in the land, the other four-fifths being held by A., who joined the conspiracy to defraud G.'s heirs, M., P. and B.; and that after title was conveyed by B. to M. the land was leased to the P. Co. for a bonus much larger than the price accounted for by B., with a royalty on oil taken from the land and other rentals. and payments. Complainant prayed that M., B., A., P., and 22 Thomas v. Anderson, C. C. A., 223 Fed. 41. 23 Baker v. Duwamish Mill Co., 149 Fed. 612. 24 John W. Hod & Co. v. Board of School Directors, 210 Fed. 384. 25 Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70. |