Allin v. Robinson

1 F. Cas. 529, 1 Dill. 119

Opinion

DILLON, Circuit kludge.

defendant’s counsel in argument seeks to support the order of removal on the ground that Prince is the real owner, and Robinson but his tenant, and that the action, though in form pos-sessory, is in reality brought to try the title which is in dispute between the plaintiff and Prince; and he claims that under such circumstances, Prince, as a non-resident, had, under the act of July 27, 1866, (14 Stat. 308,) a right at all events, to have the cause removed as to him, and that if remanded it should be remanded only as respects Robinson. Prior to the act of 1866, just mentioned, it is clear that Prince having been admitted as a co-defendant, and standing oh the record as such, could not have the cause removed, since it was not removable as to Robinson, he being a citizen of Missouri. Torry v. Beardsley, [Case No. 14,104.] Title may be tried in this form of action as was adjudged by the supreme court of the United States, in Miles v. Caldwell, 2 Wall. [69 U. S.] 35; and if in this case Robinson had filed an answer disclaiming all title or right, or claiming under Prince, and the latter had shown in his petition that he was a citizen of Illinois, that he owned the land, that the action involved his title thereto, that its value exceeded the sum of $500, and' asking a removal as to him, we would have then presented for decision the question which the defendants’ counsel has argued, but which does not arise upon the record of the proceedings in the state court. On the face of those proceedings the order for the removal was erroneously made, both as le-spects Robinson and Prince, and the cause as to both must be remanded. Motion sustained.

TREAT and KREKEL,

District Judges, concur.