FEDERAL REPORTER. from hEir husband be adjudged void, the land sold, and out of the proceeds the alimony first paid; then that, out of the fractional interest in the remainder belonging to Charles W. Chapman as one of the heirs of her husband, she be paid $10,000 damages, which she alleges she has sustained by reason of the non-payment of this alimony, and that the balance be distributed among the other heirs of her husband. She further says that she obtained her divorce from her husband on the ground of his fault, and that she is entitled, therefore, under the Kansas statute, to one· half interest in the land, which she prays may be set over to her. All these things are grouped . together in one petition. So far as the complaint for damages against Charles W. Chapman is concerned, it does not seem to me that she states any cause of action at all; and so far as the balance of the case is concerned, in it the other heirs are interested. The mere fact that she could have maintained an action against Charles W. Chapman alone does not necessarily determine the question of a separable controversy. If there was an action of tort,-an assault and battery committed by two defendants,-she could maintain an action against either one separately; but if she joins the two, there is but'a single controversy. There is not a separable controversy between her and each defend. ant. So, here, if this conveyance was made in trust, as she says, the heirs of her husband-the grantor of that trust-are interested in the land after the trust has been performed, and interested against her claim to inherit one-half, as well as to subject the land to the payment of the alimony. This is the character of' her averment: that they are interested as the heirs of her husband. She has but one claim in this respect against them all. Whether, ail a matter of fact, they are interested,-whether the deed was made in trust or in fraud,-cannot be determined until the testimony is presented. But upon the face of the papers there is no separable controversy between him and her, and therefore a motion to remand must be sustained.
GRINNELL, State's Atty., etc., ex 'l'el. CHICAGO HOSPITAL FOR WOMEN AND CHILDREN V. JOHNSON and others. 1 Oourt, N. D. lllinoM. July 6, 1886.)
1.
REMOVAL OF CAUSE FRO),{ STATE COURT-SUIT BY STATE IS NOT REMOVABLE.
A chancery suit, institnted in a state court by the state's attorney, in the name of the people of the state, for the purpose of preserving a fund alleged to be held in trust for a charitable use, and for the purpose of having a beneficiary designated to receive such fund, is a suit by the state in its own court, and hence is not removable. under any existing law, from a state court to a federal court.
lEdited by Rnssell H. Curtis. Esq., of the Chicago bar.
GRINNELL fl. JOHNSON.
8
9.
B.um-ALL ON A BIDE MUST BE ENTITLED TO REMOVAL.
A suit in a state court against citizens of another state, and a citizen of the state in which the suit is instituted, where the latter is a necessary party, 11 not removable to a federal court by the citizens of the sister state.
Motion to Remand to State Court·. Rosenthallt Pence, for complainant. Williams It Thompson, for defendants. BLODGETT, J. This case is now before the court on a motion to remand it to the circuit court of Cook county, from whence it was· removed by two of the defendants. The suit is a proceeding by an information filed upon' the chancery side of the court by the state's attorney of Cook county, in the name of the people of the state of Illinois, charging that Julia Rose Newberry, late of the city of Chi. cago, died testate in April, 1876, seized of real and personal property worth $117,000 or over, and without issue, or descendants of issue; and that by her last will and testament'said Julia Rose devised all her property, both real and personal, to her mother, Julia ButleJ! Newberry, upon the express condition that, by a will to be made be· fore receiving such bequest, the mother should bequeath all of said estate which should remain undisposed of or unspent at the time of the mother's death to such charitable institution for women in the city of Chicago as she, the mother, should select; that the estate of said Julia Rose came into the hands of her mother, and that in De. cember last the mother died; that at the time of the death of the mother the whole of the estate so received from said Julia Rose reo mained undisposed of and unspent; but that the mother never made a will directing what charitable institution for women in the city of Chicago should receive the estate of said Julia so remaining in her hands. It is further charged that, by the will of Julia Rose, her estate so remaining undisposed of at the time of the mother's death was a trust fund dedicated to some charity for women in the city of Chicago; and praying that the court, by virtue of its supervising con· trol over all trusts and charities, take possession of such funds, and· direct what charity for women in the city of Chicago shall receive the same. It further appears that Mrs. Julia Butler Newberry died tes. tate, and by her will bequeathed all her real and personal estate to her brothers, Nicholas Clapp and James Clapp, who are made de· fendants in the case, and that the defendant, Enos Johnson, as tile agent of Mrs. Julia Butler Newberry, had, at the time the informa. tion was filed, the possession of the personal estate, amounting to over $100,000, which the mother had received from the estate of Julia Rose. Nicholas and James Clapp appeared in the state court, and an· swered, setting up their claim to the property in question under the will of Mrs. Julia Butler Newberry; and filed their petition for removal to this court on the ground that they are both citizens of the
FEDERAL REPORTER.
,state of New York, and that the controversy as to the right to the estate in question is wholly between themselves and those who claim it in behalf of some charity in the city of Chicago; and the record was brought to this court, where it was filed, with leave to the relator to move to remand. ' The motion to remand is urged on two grounds: (1) That this is a suit by the state of Illinois, and therefore not removable, under the statute; (2) that Enos Johnson, one of the defendants, who had possession at the commencement of the suit of the personal property belonging to the fund in question, is a citizen of the state of Illinois, and is a necessary and indispensable party to the suit. The frame and scope of this information or bill in equity seems to me to be an assertion of the right of the sovereignty of the state to interpose for the protection of this alleged charitable fund. It is, in effect, a suit by the state for a public purpose; that is, for the recovery and protection of a fund which it is claimed has been dedicated to a charitable use within its jurisdiction. The fund, if recovered, may not belong to the state aAJ a corporate entity, and the state may have no control or disposing power over it, but, for lack of any person who can or will take steps in the premises, the state, by its proper officer, comes into conrt, and asks that this fund be protected. I do not say that a case is made under which the court can give the relief prayed for, as the merits of the case cannot be considered on this motion; but the theory of the suit is that an officer of the state has the right to institute this proceeding in the name of the state, for the benefit of whom it may concern, and that it is properly a suit by the state. This is not a case where the state allows a person to use its prerogative writ for the purpose of enforcing the performance of a duty by a public officer, or protecting a private right, as in proceedings by writs of mandamus or habeas corpus, but the state comes into court by its anthorized officer, to ask that this fund be protected and properly applied; and as such, it seems to me, it must be considered a suit by the state, brought in one of its own ()ourts, and not within the provisions of any of the laws for the removal of cases from the state to the federal courts. Stone v. Sonth Carolina, 117 U. S. 430 i S. C. 6 Sup. Ct. Rep. 799. But, if I am wrong on this point, it seems to me that the second point is well taken. The information charges that defendant Enos Johnson has possession of the personal property belonging to the fund in question, and this allegation is admitted by the answer of Johnson on file in the case. If the relator is entitled to a decree in this case, it is because the will of Julia Rose Newberry impressed upon so much of her estate as remained in the hands of her mother at the time of the mother's death the character of a trust fund for a charitable use, to which a court of equity can give direction in default of directions by Mrs. Newberry, and the person in possession of this fund becama
THOMPSON V. DIXON.
5
at once, upon the death of Mrs. Newberry, a holder of the fund for the purposes of the trust. He was therefore a necessary party to the suit, as the fund could only be reached through him. If it became and is a trust fund under the will of Miss Newberry, Johnson held it for the benefit and use of whoever shall be adjudged entitled to it, and had no right to recognize any power in Mrs. Julia Butler Newberry to dispose of it as part of her general estate. It was through service upon Johnson that the court reached the fund, to act upon and dispose of it, if the bill shall be sustained. I am therefore of opinion that the case is not a proper one for removal, and should be remanded to the state court.
THOMPSON and others V.DIXON and others. (Oircuit Oourt,
w:
D. Wisconllin.
July 10, 1886.)
action for the foreclosure of a real-estate mortgage, where the plaintiff and the defendant, the mortgagor, are residents of the same state, aod another de· fendant a resident of another state, and a mortgagee sets up in his answer a claim against the mortgaged property adverse to that of plaintiff, as well as the mortgagor, the facts do not give the United States circuit court jurisdic· tion, and the motion must be granted. Wilson v. St. Louis & S. FRy. 00.,22 Fed. Rep. 3; S. C.114 U. S. 60; 5 Sup. Ct. Rep. 738. . The court cannot look at the contract between the non·resident mortgagee and the mortgagor to determine the question of jurisdiction.
2. SAME-BASIS OF JURISDICTION.
Orton cf: Osborn, for plaintiffs. Tenney, Bashford cf: Tenney, for the Home Nat. Bank of. Chicago.
BUNN, J. This action is brought to foreclose a mortgage avon a certain flouring.mill and premises, situate in La Fayette county, Wis· consin. The plaintiffs, the mortgagees, and the defendants Dixon and his wife, the mortgagors, all reside in Wisconsin. The defendant Saterlee Warden, who has also a mortgage on the premises, and puts in an answer, resides in the state of Kansas. The defendant James B. Ginn resides in the state of Illinois, and appears by answer, setting up a lien by judgment rendered in the state court upon a mechanic's and furnisher's lien upon the mort.gaged premises subsequent to the making of the mortgage. The defendant the Home National Bank of Chicago is a corporation of Illinois, and P\lts in an answer, alleging that the Gratiot Manufacturing Company, also a cor· poration of Illinois, after the making of plaintiffs' mortgage, sold to Dixon, the mortgagor and owner of the equity of redemption, a large quantity of mill machinery, consisting of roller·mills, mill· wheels, and other machinery, to be put into, and which was put into, the mill,