K. be decreed to account for and pay over to plaintiff K., and the heirs of G., moneys received from the Pennsylvania Company, and that the latter be required to attorn to such beneficiaries. It was held: that the real controversy was as to the fraud alleged to have been committed by B., A., M., P. and K.; that plaintiff and the heirs of G. were, on the one side, opposed to the other parties; that such heirs were indispensable parties, and, being citizens of the same State as part of the other defendants, the court was without jurisdiction.26 In an action against the trustee of a deed of trust and his cestui que trust, brought by the assignee in insolvency of the grantor to prevent a sale of the property and for an accounting between the grantor and the beneficiary, the trustee is an indispensable, party adverse in interest to the plaintiff, and, if a resident of the same State as the plaintiffs, the District Court of the United States has no jurisdiction of the action as a controversy between citizens of different States, although the cestui que trust is a citizen of a different State.27

In a suit by a judgment creditor to set aside a fraudulent conveyance by his debtor it was held that the latter's trustee in bankruptcy was on the plaintiff's side of the controversy.28 In a suit by an attaching creditor to set aside a judgment obtained against the debtor by confession, it was held, that other attaching creditors, whom he had joined as defendants, were on the same side of the controversy as the plaintiff.29

In a suit by the trustee of a mortgage, to enforce a right of action held by the mortgagor,30 or to protect the mortgaged property from injury,31 the mortgagor will be considered to be

26 Trustees of Oberlin College v. Blair, 70 Fed. 414.

27 Peper v. Fordyce, 119 U. S. 469, 30 L. ed. 435.

28 Casey v. Baker, 212 Fed. 247. 29 Pollok v. Louchheim, 19 Fed. 465.

30 Dawson v. Columbia Trust Co., 197 U. S. 178, 49 L. ed. 713; Williams v. City Bank & Tr. Co., C. C. A., 186 Fed. 419; Mahon v. Guaranty Trust & Safe Deposit Co., C. C. A., 239 Fed. 266. See Adams

v. City of Woburn, 174 Fed. 192. But see City of Denver v. Mercantile Trust Co., C. C. A., 201 Fed. 790, supra, § 25, infra, § 43.

31 Consol. Water Co. v. Babcock, 76 Fed. 243; Boston S. D. & Tr. Co. v. Racine, 97 Fed. 817; Old Colony Tr. Co. v. Atlanta Ry. Co., 100 Fed. 798. Cf. Mercantile Tr. & D. Co. v. Collins P. & B. R. Co., 99 Fed. 812. But see Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865.

on the same side of the controversy as the complainant, unless it clearly appears that he is actively opposed to the relief prayed.32 But in a suit to enjoin striking employees of a contractor with complainant, from intimidating the contractor, it was held, that such contractor, although he did not oppose the relief sought could not be aligned on the same side of the controversy as the plaintiff so as to defeat the jurisdiction.33

In a suit by a bondholder or other cestui que trust, to enforce a right after his trustee has refused to sue upon the same, the defendant trustee is considered to be upon the same side of the controversy as the plaintiff; 34 unless the latter seeks some relief antagonistic to the other beneficiaries of the trust,35 or when the plaintiff claims some substantial relief against the trustee.36 In a suit by the beneficiary of a trust to remove the trustee it was held that the trustor was not on the plaintiff's side of the controversy.37

In a suit by the creditors of an insolvent corporation, citizens of another State from the corporation, and its assignees, charg

32 Dawson v. Columbia Trust Co., 197 U. S. 178, 180, 49 L. ed. 713, 715.

33 Carroll v. Cheas. & O. Coal Agency Co., C. C. A., 124 Fed. 305; 8. c., as Cheas. & O. Coal Co. v. Fire, Creek C. & C. Co., 119 Fed. 942; Niles Bement-Pond Co. v. Iron Molders' Union, Local No. 68, 246 Fed. 851; Iron Molders' Union v. NilesBement-Pond Co., C. C. A., 258 Fed. 408, reversing 246 Fed. 801.

34 Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Barry v. Mo. K. & T. Ry. Co., 27 Fed. 1; Needham v. Wilson, 47 Fed. 97; Reinach v. Atlantic & G. W. R. Co., 58 Fed. 33; Shipp v. Williams, C. C. A., 62 Fed. 4; Bowdoin College v. Merrit, 63 Fed. 213; Kildare Lumber Co. v. National Bank, C. C. A., 69 Fed. 2; First Nat. Bank v. Radford Tr. Co., C. C. A., 80 Fed. 569, 573; Dunn v. Waggoner,

11 Tenn. (3 Yerg.) 59; Swann v. Myers, 79 N. C. 101. But see Hack v. Chicago & G. S. Ry. Co., 23 Fed. 356. But see Einstein v. Georgia, So. & F. Ry. Co., 120 Fed. 1008; Hamer v. New York Railways Co., 244 U. S. 266; Sharp v. Bonham, 213 Fed. 660; Georgia Coast & P. R. Co. v. Lowenthal, C. C. A., 238 Fed. 795; Brown v. Denver Omnibus & Cab Co., C. C. A., 254 C. A. 560.

35 Rust v. Brittle Silver Co., C. C. A., 58 Fed. 611; Kildare Lumber Co. v. National Bank, C. C. A., 69 Fed. 2, First Nat. Bank v. Radford Tr. Co., 80 Fed. 569, 571, 573. See Mommonth Inv. Co. v. Means, C. C. A., 151 Fed. 159.

36 Fitz Gerald v. Thompson, 222 U. S. 555, 56 L. ed. 314.

37 Hidden v. Washington-Oregon Corporation, 217 Fed. 303; General Electric Co. v. Richardson, C. C. A., 233 Fed. 84.

ing improper conduct on the part of the assignees and praying for a receiver, it was objected to the jurisdiction of the Federal Court that the action was really one by the corporation against the assignees, and that the suit was brought by the creditors for the purpose of bringing the suit in the Federal Courts. It was held, that as the creditors had the right to sue, this objection was not tenable. 38

In a stockholder's suit, the corporation if it is not alleged to be under the control of the defendants or to resist the relief sought should be aligned as a complainant for the purpose of determining the jurisdiction.39 In a stockholder's suit to enforce a right of his corporation, where it is shown that the corporation is under the control of the other defendants, it will be treated as upon the same side of the controversy that they are, for the purpose of determining the jurisdiction.40 In one to prevent the majority of the stockholders from causing the corporation to act in fraud of the minority, the corporation is to be aligned on the same side as the majority stockholders.41 It has been held that in a stockholder's suit, where the plaintiff has failed to comply with the equity rules by showing efforts to secure action by the other

38 Bell v. Ohio Life Ins. Co., Fed. Cas. No. 1,261.

39 Iron Molders' Union v. NilesBement-Pond Co., C. C. A., 258 Fed. 408, reversing 246 Fed. 851.

40 Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606; overruling a number of decisions of the lower courts to the contrary. Hyams v. Calumet & Hecla Mining Co., 221 Fed. 529; Whitaker v. Whitaker Iron Co., 238 Fed. 980; Cutting v. Woodward et al., C. C. A., 255 Fed. 633. See Woolsey v. Dodge, Fed. Cas. No. 18,032, 6 McLean, 142; s. c., as Dodge v. Woolsey, 18 How. 331, 15 L. ed. 401; DeNeufville v. New York & N. R. Co., C. C. A., 81 Fed. 10; MacGinniss v. Boston & M. Consol. Copper & Silver Min. Co., 119 Fed. 96, 55 C. C. A. 648; Redfield v. Baltimore & O. R. Co.,

:

124 Fed. 929; Mills v. City of Chicago, 127 Fed. 731; Groel v. United Electric Co. of New Jersey, 132 Fed. 252; Howard v. Nat. Telephone Co., 182 Fed. 215; Crawford v. Seattle, R. & S. Ry. Co., 198 Fed. 920. Before the decision of Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606, it was held, that where a stockholder's bill did not conform to the requirement of the equity rules, by showing efforts made to secure action by the stockholders, or an excuse for such failure, the corporation must be aligned with the complainants. Waller v. Coler, 125 Fed. 821.

1

41 De Neufville v. New York & N. Ry. Co., C. C. A., 81 Fed. 10; Redfield v. Baltimore & O. R. Co., 124 Fed. 929; Elkins v. Chicago, 119 Fed. 957.

stockholders on an excuse for such failure, the corporation is to be treated as upon the same side of the controversy as the complainant.42 Where the controversy for the control of the corporation transcends the rivalry of those claiming to be members of its board of control and the corporation itself is a mere. instrumentality or holder of the title, it is properly made a party defendant and should not be aligned as a plaintiff merely because the plaintiffs belong to the faction that claims the power to appoint the members of the board.43 In such a case, it has been held that trustees of the corporation, although in sympathy with the complainant, should be aligned with the defendants.44 In a stockholders' suit to recover assets of a corporation it was held that a statutory receiver who had been made a defendant was on the plaintiff's side of the controversy.45

In an action for damages under the Kansas statute, because the plaintiff's cattle caught Texas fever from cattle driven into the State in violation of the law, where the importer of the Texan cattle and those to whom he had sold the same under a contract, whereby they assumed his liability to the plaintiff, were joined as defendants; it was held, that the importer's interest was not so adverse to that of his vendees as to justify his classification as a plaintiff, and thereby give such vendees a right of removal on the ground of diverse citizenship.46

§ 42. Formal parties to the controversy. The citizenship of formal parties, with no real interest in the controversy, does not affect the jurisdiction.1

42 Waller v. Coler, 125 Fed. 821; Groel v. United El. Co., 132 Fed. 252. These cases were decided before Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606. A similar ruling has been made since this decision. Gage v. Riverside Trust Co., 156 Fed. 1002, 1007.

43 Helm v. Zarecor, 222 U. S. 32, 56 L. ed. 77. But see Stephens v. Smartt, 172 Fed. 466.

44 Kelly v. Dolan, 218 Fed. 966. 46 Sharpe v. Bonham, 224 U. S. 241, 16 L. ed. 747.

46 Woodrum v. Clay, 33 Fed. 897.

§ 42. 1 Wormley v. Wormley, 8 Wheaton, 421, 5 L. ed. 651; Wood v. Davis, 18 How. 467, 15 L. ed. 460; Removal Cases, 100 U. S. 457, 25 L. ed. 593; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Harter v. Kernochan, 103 U. S. 562, 26 L. ed; 411; Corbin v. Van Brunt, 105 U. S. 576, 26 L. ed. 1176; Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822; Hervey v. Illinois Midland Ry. Co., Fed. Cas. No. 6,434 (7 Biss. 103); Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397); Edgerton v. Gilpin, Fed. Cas. No. 4,280

Such are parties holding the naked legal title, with no actual interest or control over the subject-matter of the litigation,. when all the equitable interests are therein represented.2 Plaintiff and another contracted as partners to do certain work in the construction of a railroad as subcontractors. By a contract between themselves, previously made and known to the principal contractor, it was agreed: that plaintiff should furnish the materials and do the work and receive and disburse the money received therefor, accounting to his associate only for a share of the net profits of the contract after the completion of the work. Plaintiff brought suit in a Federal court to enforce a mechanic's lien, filed in the name of the partnership, for the balance due under the contract, alleging such facts in his bill and that no net profits were earned under the contract. It was held that it was competent for plaintiff to allege, for jurisdictional purposes, the contract between him and his nominal partner; and that under such agreement the citizenship of such partner did not affect the jurisdiction of the court, since he had no interest in the recovery and was neither an indis

(3 Woods, 277); Taylor v. Rockefeller, Fed. Cas. No. 13,802; Chicago, St. L. & N. O. R. Co. v. McComb, Fed. Cas. No. 2,670 (17 Blatchf. 371); Foss v. First Nat. Bank, 3 Fed. 185, 1 McCrary, 474; Deford v. Mehaffy, 14 Fed. 181; Taylor v. Holmes, 14 Fed. 498; Bates v. New Orleans, B. R. & V. R. Co., 16 Fed. 294; Gudger v. Western N. C. R. Co., 21 Fed. 81; Sioux City & D. M. Ry Co. v. Chicago, M. & St. P. Ry. Co., 27 Fed. 770; New Chester Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19, 26; Carver v. JarvisConklin Mortgage Trust Co., 73 Fed. 9; Garrard v. Silver Peak Mines, 76; Fed. 1; Title Guarantee & Trust Co. v. Studebaker, 100 Fed. 358; Wirgman v. Persons, C. C. A., 126 Fed. 449; affirming decree Persons v. Beling, 116 Fed. 877; Steiner v. Mathewson, 77 Ga. 657; Withers v. John Hopkins Place Sav. Bank

Georgia, 30 S. E. 766; Harper v. Gaitheman (Kentucky), 1 Ky. Law. Rep. 419; Danvers Sav. Bank v. Thompson, 133 Mass. 182; Calloway v. Ore Knob Copper Co., 74 N. C. 200; Hadley v. Dunlap, 10 Ohio St. 1; Smith v. Baltimore & O. R. Co., 7 Ohio Dec. 542.

2 Boon v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Banigan v. City of Worcester, 30 Fed. 392; Lawrence v. Southern Pac Co., 165 Fed. 241; Atchison, T. & S. F. Ry Co. v. Phillips, C. C. A., 176 Fed. 663, holding that in an action by a widow under the California statute to recover damages for the death of her husband, the other heirs of the deceased, who are not entitled to share in the recovery, are necessary, but merely formal, parties. But see Dunn v. Waggoner, 11 Tenn. (3 Yerg.), 59.