First Baptist Church of Taft v. Southern Mortgage Co.

39 F.2d 246, 1930 U.S. Dist. LEXIS 1969

• Court: District Court, S.D. Texas
• Decided: February 17, 1930
• Docket: No. 42
• Status: Published

Opinion

HUTCHESON, District Judge.

The plaintiff moves to remand on the ground that the action is one and indivisible to remove cloud upon and' quiet title to its property, and to determine the validity and position of conflicting lien claimants, and that, though the answers do present separate defenses, there is within the meaning of the law no separable controversy here.

It seems to me that plaintiff is correct. Certainly the philosophy of the statute (28 USCA § 71) which granted removal in cases of separable controversies does not extend to a ease of this kind. The purpose and.intent of that act was to prevent a nonresident defendant from being deprived of his right to try his cause in the federal court by having a cause of action against him alone, joined in the same suit with a cause or causes of action involving him and others jointly.

Here it is essential to plaintiff’s complete relief that all of the parties be joined in the same suit, and it will not do to answer that plaintiff was not deprived of that right, since a removal now brings into the federal court not only the separable controversy but the whole case, for the question is whether there is in this suit a cause of action which can be completely determined between plaintiff and the removing defendants alone, and to this I think the answer must be in the negative.

Let an order of remand then be entered-