Roberts, conceive how this can be treated as not the payee to declare the note due at any time he deemed himself insecure ; and it was held non-negotiable: First Nat. Bank v. Bynum, 84 N. C. 24; s. c. 37 Am. Rep. 604. See Morgan v. Edwards, 53 Wis. 599; s. c. 40 Am. Rep 781; Mahoney v. Fitzpatrick, 183 Mass. 151; 43 Am. Rep. 502; Miller v. Poage, 56 Ia. 96; s. c. 41 Am. Rep. 82. W. W. THORNTON. Supreme Court of Iowa. VIMONT v. CHICAGO AND N. W. RAILWAY CO. A cause of action for a tort is assignable so as to vest in the assignee a right of action in his own name. J., who was injured by the negligence of defendant railroad company, assigned his claim for damages to V., who executed the following agreement: "In consideration of the assignment to me by C. O. Johnson of his claim for damages against the Chicago & Northwestern Railway Company, resulting to him by reason of an injury received by him on or about the thirty-first day of August 1881, on said railway, I hereby agree to dispose of the entire amount realized on said clain as follows: For my own compensation in and about the prosecution of said claim, aud for the use of any advances of money I may make I am to retain thereof the sum of fifty dollars; I am also to retain all sums of money that I may advance in the prosecution of said claim; next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim on such fee therefor as may be agreed upon, if any agreement for a specific amount shall be agreed upon, and the balance of said recovery I agree to pay to the said C. O. Johnson." Held, that the cause of action was assignable; that the assignment and agreement did not constitute barratry, champerty, or maintenance; and that V. was entitled to maintain an action for damages against the railway company in his own name. In such an action, even if it should appear that the assignment was colorable and fraudulent, the assignor need not be made a party to the action. Where an assignment of a cause of action is legal and valid, the fact that it was made for the express purpose of depriving defendant of the right to remove the case to a federal court on the ground of citizenship, will not invalidate it or entitle defendant to such removal. APPEAL from Polk Circuit Court. The plaintiff, as assignee of one Johnson, brought this action to recover damages for a tort committed by the defendant. The latter moved the court to require Johnson to be made a party to the action. This motion was overruled, and the defendant appeals. The latter afterwards filed a motion to transfer the cause to the federal court. This motion was sustained, and the plaintiff appealed. Nourse & Kauffman, for plaintiff. N. M. Hubbard and W. S. M. Clark, for defendant. The opinion of the court was delivered by. SEEVERS, J.-As to the defendant's appeal.-The petition states. that C. O. Johnson was a passenger on one of the defendant's trains, and because of the negligence of the defendant he was injured and entitled to recover damages therefor. The nature and extent of the injuries are stated, and that Johnson had assigned his claim and right of action to the plaintiff, wherefor judgment was asked. The defendant pleaded: First, a general denial of the allegations of the petition; second, "that the assignment was colorable, collusive, and fraudulent, and made for the purpose of depriving defendant of its right to remove the cause to the federal court;" and, third, "that the assignment of the claim by Johnson, together with the assignment executed at the same time by Vimont, constitutes barratry, champerty and maintenance, and is void for that reason." The agreement executed by the plaintiff at the time the assignment was made is in these words: "In consideration of the assignment to me by C. O. Johnson of his claim for damages against the Chicago & Northwestern Railway Company, resulting to him by reason of an injury received by him on or about the thirty-first day of August 1881, on said railway, I hereby agree to dispose of the entire amount realized on said claim as follows: For my own compensation in and about the prosecution of said claim, and for the use of any advances of money I may make I am to retain thereof the sum of fifty dollars. I am also to retain all sums of money that I may advance in the prosecution of said claim. Next, I agree to pay out of the proceeds of said recovery the reasonable fee of the attorneys and agents employed to prosecute said claim, or such fee thereof as may be agreed upon, if an agreement for a specific amount shall be agreed upon. And the balance of said recovery I agree to pay to the said C. O. JohnWM. H. VIмONT." son. The defendant also pleaded that the assignment was made and completed in Illinois, and that by the laws of that state the assign ment is void, and that it is illegal and void under the laws of Iowa. The defendant moved the court to make an order requiring said Johnson to be made a party plaintiff, on the ground that no determination of the controversy could be made unless said Johnson was a party to the record. And, in support of the motion, the defendant introduced the deposition of the plaintiff showing the agreement taken back at the time of the assignment was as above set forth : "That the plaintiff paid said Johnson no money, and don't know him; that the assignment was procured by his attorneys, Nourse & Kauffman-Mr. Nourse being his brother-in-law; that he had no knowledge of this claim prior to receiving information in regard to it from Nourse & Kauffman." Is an action for a tort assignable so as to vest in the assignee a right of action in his own name? In Weire v. City of Davenport, 11 Iowa 49, it was held that a right of action for a tort could be sold and transferred at common law, and in Gray v. McCallister, 50 Iowa 497, it was held that a claim for a personal tort, which dies with the party, could be sold or transferred like any other cause of action. See, also, Small v. Railroad Co., 50 Iowa 338. We are not disposed to depart from the rule established in these cases, therefore the assignment in this case is valid under the law of this state. The laws of Illinois were not introduced in evidence in this case and are not, therefore, before us. In the absence of proof to the contrary it must be presumed that the laws of that state are the same as those of Iowa. This we have held in several cases. The assignment of the claim vested the legal title thereto in the plaintiff. Being such owner, he legally is the real party in interest, and the statute requires that the action for the recovery of such claim must be brought in the name of the said party. Code, § 2543. But it is urged that the assignment is colorable, and does not vest the right to maintain this action in the plaintiff, because of the agreement made at the time of the assignment whereby he agreed to pay a portion of the amount recovered and realized to Johnson, the assignor. If the assignment vested the legal title to the claim in the plaintiff it would seem that, ordinarily, he, as such owner, should have the right to do what he pleased with it. Besides this we understand this identical question was made and determined in Knadler v. Sharp, 36 Iowa 232, adversely to the defendant, and no adequate reasons having been adduced why that case should be overruled we therefore follow it. We may further remark that it was held in Small v. Railroad Co., before cited, that champerty and maintenance are not a defence to the action. We therefore are of the opinion the plaintiff can maintain this action. It is said as it may be determined the assignment is colorable, fraudulent, and void, that a complete determination of this case cannot be made unless Johnson is made a party. Johnson filed a paper in response to the motion in which he disclaimed any interest in the prosecution of this action, and stated in substance that he did not own the claim, but that he had assigned it to the plaintiff. If it should be determined on the trial, that the defendant had not been negligent, such adjudication would be binding on Johnson, and the controversy would be finally ended; but, if the plaintiff should be defeated on the ground that he did not own the claim, or that the assignment was colorable and fraudulent, it may be that Johnson could maintain an action thereon. "The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights: but when a determination of the controversy between the parties before the court cannot be made without the presence of other parties the court must order them to be brought in:" Code, § 2551. The rights of others cannot be prejudiced by whatever determination is made between these parties. Those of Johnson certainly cannot be, but if they should, he would clearly be estopped from complaining. It is urged, however, that the defendant would be prejudiced if compelled to again litigate the questions involved with Johnson. We do not think, conceding this to be so, that such prejudice would be of a legal character, for the reason that the statute does not seem to so contemplate. In actions at law, if the controversy can be determined, without prejudice to the rights of others, between the parties to the action, this, ordinarily, is all that can be required. The motion, therefore, was properly overruled. As to the plaintiff's appeal. After the determination of the foregoing motion the defendant filed a petition for the removal of this action to the federal court. It is in the following words: "That the defendant is, and was at the date of the commencement of this suit, a citizen of the state of Illinois; that William H. Vimont, plaintiff herein, was also, at and ever since the commencement of this suit, has been a citizen of the state of Illinois; that C. O. Johnson is the real party plaintiff, and is the party that received the injury; and that for the sole purpose of avoiding the jurisdiction of the federal court, said Johnson made said pretended assignment of said claim to said William H Vimont, and received back the written contract set out in defendant's answer; that said assignment and contract were made in Illinois, and that, by the laws of the state of Illinois, the assignment is invalid and insufficient for said William H. Vimont to maintain an action thereon in the state of Illinois; that the assignment and contract between said Vimont and said Johnson are barratrous and champertous, and against public policy and void, as appears by defendant's answer herein; that said C. O. Johnson is the real party in interest as plaintiff, and was, at and before the commencement of this suit, and still is, a citizen of the state of Iowa, and prays that said C. O. Johnson be made a party plaintiff in this suit; that there is and was at the date of the commencement of this suit a controversy between petitioner and the said Johnson, the real plaintiff, and that the matter in dispute exceeds, exclusive of costs, the sum of five hundred dollars, and that the present term of this court is the first term at which the case could be tried. *** Petitioner offers a bond with surety and prays," the court to order the action to be removed, &c. The act of Congress under which the removal is sought, provides that where there is a controversy between the citizens of different states, and the amount in controversy exceeds $500, exclusive of costs, the action may be removed from the state to the federal court. Does the record show that there is such a controversy? We have held that Johnson is not a necessary party, but that the plaintiff can maintain this action. It then follows, we think, that there is not, and cannot be in this action any controversy except between the plaintiff and defendant, who are both residents of Illinois, and therefore, as between them, the right of removal does not exist. But counsel for the defendant claim that it appears from the record that the assignment of the claim by Johnson to the plaintiff was made for the express purpose of depriving the defendant of the right to remove the action to the federal court. The petition for the removal so states. But the plaintiff, in what is designated as an answer thereto, denied that Johnson was the real plaintiff, and denied that the assignment was made for the purpose stated in the But it is said that we can only look to the facts stated in the petition, and must disregard anything stated by the plaintiff. answer. |