On the 31st December, 1884, A, a citizen of Pennsylvania, sued
out of a court of that state a summons in an action on contract to
recover a balance of money lent against B, a citizen of New York,
and C, a citizen of Pennsylvania, surviving partners of D,
returnable on the 1st Monday in January then next, and C accepted
service before the return day. On the 26th of January, 1880,
judgment was entered against both defendants for want of defense,
under the practice in that state. On the 3d February, 1885, B
voluntarily appeared and accepted service with the like force
Page 119 U. S. 503
as if the writ had been returnable on the 1st Monday in April
and had been served on the 1st Monday in March. On May 2d 1885, B
filed his affidavit of defense and immediately filed a petition for
the removal of the case to the circuit court of the United States
on the ground that the controversy in the suit was between citizens
of different states. The cause being removed, it was, on motion of
the plaintiff, remanded to the state court on the ground that it
appeared by the record that defendants were not both citizens of
another state than plaintiff, and that plaintiff was a citizen of
Pennsylvania.
Held (1) that under the practice in
Pennsylvania, this was a proceeding in the original suit under the
original cause of action; (2) that the controversy was not a
separable one within the meaning of the removal act of 1875; (3)
that the fact that the liability of C had been fixed by the entry
of judgment against him did not affect the principle.
A removal of a cause from a state court to a federal court made
on a petition under the Act of March 3, 1875, 18 Stat. 470, on the
ground of a separable controversy, takes the whole cause from the
jurisdiction of the state court, but a removal for the same cause
under the act of 1866 may take only the separate controversy of the
petitioning defendant, leaving the state court to proceed against
the other defendants.
Yulee v. Vase, 99 U. S. 539,
distinguished.
Barney v. Latham, 103 U. S. 205,
affirmed.
Putnam v. Ingraham, 114 U. S. 5i,
affirmed.
This is a writ of error brought under § 5 of the Act of
March 3, 1875, c. 137, 18 Stat. 470, for the review of an order of
the circuit court remanding a case which had been removed from the
Court of Common Pleas No. 1 of the County of Philadelphia,
Pennsylvania. The facts are these:
On the 31st of December, 1884, Edward S. Clark sued out of the
court of common pleas a writ of summons against "Charles H. Brooks
and Josiah D. Brooks, surviving partners of D. Leeds Miller,
deceased, trading as Brooks, Miller & Co.," returnable on the
first Monday of January then next. Before the return of the writ,
Josiah D. Brooks endorsed thereon as follows: "I accept service of
within writ. Josiah D. Brooks."
On the 12th day of January, 1885, Clark filed an "affidavit of
loan" in accordance with the provisions of a statute of
Pennsylvania, showing that the suit was brought for $15,000,
balance due to him on the 31st of December, 1876, for moneys lent
the firm of Brooks, Miller & Co., on which interest had
Page 119 U. S. 504
been paid to October 30, 1884. Appended to this affidavit was
what purported to be "a copy of account from defendant's books,"
showing the loan and cash paid for interest. By a statute of
Pennsylvania, it was lawful for the plaintiff, "on or at any time
after the third Saturday succeeding" the return day of the
writ,
"on motion, to enter a judgment by default, . . . unless the
defendant shall previously have filed an affidavit of defense,
stating therein the nature and character of the same."
Josiah D. Brooks did not file an affidavit of defense within the
time thus limited, and accordingly, on the 26th of January, 1885,
the following entry was made in the cause: "And now, on motion of
Pierce Archer, Esq., the court enters judgment against the
defendants for want of an affidavit of defense."
On the same day, an assessment of damages was also filed in the
cause, as follows:
"I assess damages as follows:"
Real debt . . . . . . . . . . . . . . . $15,000
Int. from 10-30-84, to 1-24-85. . . . . 210
-------
$15,210
"J. KENDERDINE"
"
pro Proth'y"
This, according to the law and practice in Pennsylvania, was a
final judgment in the action against Josiah D. Brooks for the
amount of damages so assessed, and, accordingly, in the docket
entries this appears:
"January 26, 1885. Judg't for want of aff. of defense against
Josiah D. Brooks only."
"
Eo die. Dam's assessed at $15,210."
On the 3d of February, 1885, Charles H. Brooks voluntarily
caused to be endorsed on the original summons, then in court, the
following:
"I accept service of the writ for Charles H. Brooks with like
force and effect as if the writ had been issued ret'd to the
Page 119 U. S. 505
first Monday of April, and had been served on or before the
first Monday of March, A.D. 1885."
"JOHN G. JOHNSON"
"
Att'y Ch. H. Brooks"
On the second day of May, 1885, Charles H. Brooks filed in the
cause his affidavit of defense, in which he set forth, in
substance, that until the 31st of December, 1879, he was a member
of the firm of Brooks, Miller & Co.; that previous to that
time, Clark had deposited moneys with the firm, and on that day
there was due him $15,000, for which he held the firm's due-bill;
that on that day Josiah D. Brooks and Miller purchased the interest
of Charles H. Brooks in the firm, paying him therefor $21,749.40,
and assuming all the debts; that the partnership was thereupon
dissolved, and Clark duly notified; that, immediately on the
dissolution, Josiah D. Brooks and Miller formed a new partnership,
and continued the old business; that Clark was duly notified of the
assumption by the new firm of all the debts of the old, and with
this knowledge gave up the due-bill of the old firm which he held,
and took another for the same amount from the new firm, in full
satisfaction and discharge of the original indebtedness, and that
the new firm paid the interest as it thereafter accrued until the
time mentioned in the affidavit of loan, to-wit, October 30, 1884.
On this state of facts, Charles H. Brooks insisted, by way of
defense, that he was discharged from all liability.
Immediately on filing this affidavit of defense, Charles H.
Brooks presented a petition for the removal of the suit to the
Circuit Court of the United States for the Eastern District of
Pennsylvania, the material parts of which are as follows:
"The petition of Charles H. Brooks, defendant above named, who
was sued with Josiah D. Brooks, as surviving partners, . . .
respectfully represents that the controversy in this suit is
between citizens of different states; that your petitioner was at
the time of the commencement of this suit, and still is, a citizen
of the State of New York, and that the said plaintiff, Edward S.
Clark, was then and still is a citizen of the state
Page 119 U. S. 506
of Pennsylvania, and that the matter and amount in dispute in
the said suit exceeds, exclusive of costs, the sum or value of five
hundred dollars."
On the 23d of May, 1885, the suit was entered by Charles H.
Brooks in the circuit court, and, on the 8th of September
following, Clark moved that it be remanded. Afterwards, on the 8th
of October, this motion was granted,
"it appearing by inspection of the record that the defend. ants
are not both citizens of another state than the plaintiff, and that
said Josiah D. Brooks is a citizen of Pennsylvania."
To reverse that order this writ of error was brought.
Page 119 U. S. 509
MR. CHIEF JUSTICE WAITE, after stating the case as above
reported, delivered the opinion of the Court.
The action as originally brought was a joint action on a joint
liability of Josiah D. Brooks and Charles H. Brooks as partners,
and, according to
Putnam v. Ingraham, 114 U. S.
57, it was not separable, for the purposes of removal,
prior to the judgment against Josiah D. Brooks, even after his
default. The question we now have to consider is therefore whether
the judgment against Josiah D. Brooks takes the case out of that
rule.
Page 119 U. S. 510
A statute of Pennsylvania passed April 6, 1830, provided as
follows:
"In all suits now pending or hereafter brought in any court of
record in this commonwealth against joint and several obligors,
co-partners, promisors, or the endorsers of promissory notes, in
which the writ or process has not been or may not be served on all
the defendants, and judgment may be obtained against those served
with process, such writ, process, or judgment shall not be a bar to
recovery
in another suit against the defendant or
defendants not served with process."
1 Brightly's Purdon's Digest, 11th ed., 953, § 43.
Another statute, passed April 4, 1877, enacted as follows:
"Where judgment has been or may hereafter be obtained in any
court of record of this commonwealth against one or more of several
codefendants in default of appearance, plea, or affidavit of
defense, said judgment shall not be a bar to recovery
in the
same suit against the other defendants jointly, or jointly and
severally, liable as co-obligors, co-partners, or otherwise."
Ib. 954, § 49.
By another statute, passed August 2, 1842, it was provided that
in all actions instituted against two or more defendants in which
judgment may be entered on record at different periods against one
or more of the defendants, by confession or otherwise, the entries
so made
"shall be considered good and valid judgments against all the
defendants, as of the date of the respective entries thereof, and
the day of the date of the last entry shall be recited in all
subsequent proceeding, by
scire facias or otherwise, as
the date of judgment against all of them, and judgment rendered
accordingly."
And
"When an entry of judgment . . . shall be made on the records of
any court against two or more defendants at different periods, such
entries shall operate as good and valid judgment against all the
defendants, and the plaintiff may proceed to the collection of the
money due thereon, with costs, as if the entries had all been made
at the date of the latest entry."
Ib., §§ 45, 46.
This is a proceeding in the original suit, and on the original
cause of action. If a judgment shall be rendered against
Page 119 U. S. 511
Charles H. Brooks, it will be a judgment in the original action,
the same in all respects, except as to date, that it would have
been if he had been served with process, and had put in the same
defense before the judgment against Josiah D. Brooks. He
voluntarily appeared "in the same suit" by accepting service of the
original summons, but with an extension of time to put in his
personal defense. Had the same thing been done before the judgment
against Josiah D. Brooks, there could have been no removal on the
petition of Charles H. Brooks, or on the petition of all the
defendants, because the suit would have been against the two
defendants, one of whom was a citizen of the same state with the
plaintiff, and a separate defense by one. This, it has often been
held, would not show or create a separable controversy within the
meaning of the removal act.
Hyde v. Ruble, 104 U.
S. 407;
Ayres v. Wiswall, 112 U.
S. 187,
112 U. S. 193;
Louisville & Nashville Railroad v. Ide, 114 U. S.
52;
Putnam v. Ingraham, 114 U. S.
57;
St. Louis &c. Railway v. Wilson,
114 U. S. 60;
Pirie v. Tvedt, 115 U. S. 41;
Starin v. New York, 115 U. S. 248,
115 U. S. 259;
Sloane v. Anderson, 117 U. S. 275;
Fidelity Ins. Co. v. Huntington, 117 U.
S. 280;
Core v. Vinal, 117 U.
S. 347;
Plymouth Mining Co. v. Amador Canal
Co., 118 U. S. 265.
It is true there is now no longer any controversy upon the original
cause of action with Josiah D. Brooks, against whom a final
judgment has already been rendered, but neither was there in
Putnam v. Ingraham, supra, with the defendant Morgan, who
was in default, and made no defense. In this respect, the two cases
differ only in degree, and not in kind. In this case, the
proceedings had gone one step further than in the other, and the
default of Josiah D. Brooks had been fixed by the judgment. In
principle, however, the cases are alike.
Much reliance was had in argument on
Yulee v. Vose,
99 U. S. 539. The
petition in that case was filed under the Act of July 27, 1866, 14
Stat. 306, c. 288, where only the separate controversy of the
petitioning defendant could be removed, and the plaintiff was
allowed to proceed against all the other defendants in the state
court, as to the remaining controversies in the suit, the same as
if no removal had been had.
Page 119 U. S. 512
Under that statute, the suit could be divided into two distinct
parts -- one removable and the other not. That which was removable
might be taken to the circuit court of the United States, and that
which was not removable would remain in the state court for trial
without any reference whatever to the other. The removal had the
effect of making two suits out of one. Not so with the act of 1875.
Under that, it was held in
Barney v. Latham, 103 U.
S. 205, that if a separable controversy exists, a
removal for such cause takes the whole suit to the circuit court,
and leaves nothing behind for trial in the state court.
In
Yulee v. Vose, there were several causes of action
embraced in the suit, some joint against Yulee and all the other
defendants and one against Yulee alone as the endorser of certain
promissory notes. Upon a trial, judgment had been rendered in favor
of all the defendants upon all the causes of action. This judgment
was affirmed by the highest court of the state as to all the causes
of action except that against Yulee alone as endorser. As to that,
it was reversed, and the cause sent back for a new trial. It was
under these circumstances that it was said
"it appeared that the controversy, so far as it concerned Yulee,
not only could be, but actually had been, by judicial
determination, separated from that of the other defendants,"
and a removal of this controversy, thus actually separated from
the rest of the case, was directed upon the petition of Yulee,
filed after the case had been sent back for trial as to him alone
and before the trial or final hearing, which was in time under that
statute. Upon this removal only the separate controversy with Yulee
was carried to the circuit court, and the judgment in that would
have no connection whatever with the other parts of the case, which
remained undisturbed in the state court, where the record
continued, so far as they were concerned.
In the present case, however, and under the present law, as
ruled in
Barney v. Latham, supra, the whole original suit,
including the judgment against Josiah D. Brooks, must be taken to
the circuit court, because this is a proceeding under the
Pennsylvania statute in that suit to obtain a judgment
Page 119 U. S. 513
therein against Charles H. Brooks. If the removal should be
allowed and a judgment rendered in favor of Charles H. Brooks, the
circuit court would be compelled to carry into execution the
judgment of the state court against Josiah D. Brooks, which would
in no sense be a judgment of the circuit court, but of the state
court alone. As Charles H. Brooks made himself a party to the "same
suit," he voluntarily subjected himself to the obstacles which were
in the way of removing his controversy to the circuit court, and
must be governed accordingly.
Fletcher v. Hamlet,
116 U. S. 408. Had
the plaintiffs proceeded against him under the other statute, and
brought another suit, the case would have been different, because
that would have been a separate and distinct action, to which there
was no other defendant but himself; but this proceeding is merely
auxiliary to the original suit, and in all respects a part of that
suit, from which it cannot be separated. If a judgment shall be
rendered against Charles H. Brooks, that judgment and the judgment
already existing against Josiah D. Brooks, "will be treated as one
on the
scire facias or execution."
Finch v.
Lamberton, 62 Penn.St. 373.
The order remanding the case is
Affirmed.
