ecutors of a deceased trustee, citizens of the same State as the complainant, in order that such executors might perform the ministerial act of conveying title, in case the power to do so was vested in them by the laws of the State.36 It has been held that in a controversy as to the priority of different liens upon mortgaged land, the mortgagor is a formal party, when the validity of neither of the liens is disputed; 37 and that so is the lessor of a railroad when the lease is for more than ninety years and the lessee has assumed all the lessor's obligations; 38 and that so is the owner of the fee as well as the lessee railway company, in a proceeding to condemn a right of way in the possession of the lessee holding a term of ninety years.39

Defendants sued by fictitious names are always treated as formal parties, whose presence on the record does not affect the right of removal.40

A garnishee is not considered to be a party to the suit, when determining the right of removal. Where the essential parties on the adverse sides of a controversy were citizens of different States; it was held, that the fact that the executors of the deceased father of the principal defendant, who had been made defendants in order to reach his interest in his father's estate, were citizens of the same State as plaintiffs, would not affect the right of removal.42

It has been held, that the following persons are not mere formal parties, and that their citizenship must be considered when the jurisdiction is determined: a party against whom a decree

36 Walden v. Skinner, 101 U. S. 577, 25 L. ed. 963.

37 Removal Cases, 100 U. S. 457, 469, 25 L. ed. 593. But see Thompson v. Dixon, 28 Fed. 5; Tug River Coal & Salt Co. v. Brigel, C. C. A., 67 Fed. 625.

38 Seaboard Air Line Ry. V. North Carolina R. Co., 123 Fed. 629; Olanta Coal Min. Co. v. Beech Creek R. Co., 144 Fed. 150; Chase v. Beech Creek R. Co., 144 Fed. 571. Contra, Bellaire v. Baltimore

& Ohio R. R. Co., 146 U. S. 117, 36

L. ed. 910; Washington v. Columbus & C. M. R. Co., 53 Fed. 673.

39 Seaboard Air Line Ry. Co. v. North Carolina R. Co., 123 Fed. 629.

40 Parkinson v. Barr, 105 Fed. 81; Loop v. Winters' Estate, 115 Fed. 362. Contra, Grosso v. Butte Electricity Ry. Co., 217 Fed. 422.

41 Cook v. Whitney, Fed. Cas. No. 3,166 (3 Woods, 715); Corbitt v. President, etc., of Farmers' Bank of Delaware, 113 Fed. 417.

42 Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69.

46.

is essential to the relief sought by the suit; 43 a stakeholder in the possession of property, to recover which the suit is brought an administrator with the will annexed in a suit for a construction of the will; 45 the personal representative of a deceased in an action to recover damages for his death, although the proceeds are for the exclusive benefit of the members of the dead man's family; a tenant in common with a leasehold interest and an equity for improvements, when joined with the landlord in a suit for ejectment; 47 a corporation in a stockholder's suit, to cancel a contract which it has made; 48 a corporation in a suit by its mortgagee, to cancel a contract made by it with another, although it was alleged that its assets were insufficient to pay the mortgage; 49 a corporation in a suit to compel the transfer of stock, the certificates for which were held or claimed by another defendant.50 Where the stakeholder brought a suit of interpleader; it was held, that a difference of citizenship between the defendants justified a removal.51 Under the Illinois statute, which gives the right of appeal to any one aggrieved by the order of a probate court allowing a claim, as construed by the Supreme Court of the State, any person appeal

48 Wormley v. Wormley, 21 U. S. (8 Wheat.), 421, 5 L. ed. 651; Carneal v. Banks, 23 U. S. (10 Wheat.), 181, 6 L. ed. 297; Ward v. Arredondo, Fed. Cas. No. 17,148 (1 Paine, 410); Post v. Buckley, 119 Fed. 249.

44 Wilson v. Oswego Tp., 151 U. S. 56, 38 L. ed. 70; Massachusetts & S. Constr. Co. v. Cane Creek Tp., 155 U. S. 283, 39 L. ed. 152; Scoutt v. Keck, 73 Fed. 900, 20 C. C. A. 103. But see Pacific R. Co. v. Ketchum, 101 U. S. 289, 298, 25 L. ed. 932; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Reeves v. Corning, 51 Fed. 774, 778; N. Y. Constr. Co. v. Simon, 53 Fed. 1; and cases cited. 45 Security Co. v. Pratt, 64 Fed. 405.

46 Laubscher v. Fay, 197 Fed. 879. 47 Beardsley v. Torrey, Fed. Cas. No. 1,190 (4 Wash. C. C. 286);

Cleveland v. Cleveland, C. C. & St. L. Ry Co., C. C. A., 146 Fed. 171. Contra, Gwynne v. Roe, 4 Ohio (4) Ham.), 435; Texas v. Lewis, 12 Fed. 1; brought in Texas for trespass to try title to land, and the tenant disclaimed title.

48 East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. ed. 382.

49 Consol. Water Co. v. Babcock, 76 Fed. 243. See Dawson v. Columbia Trust Co., 197 U. S. 178, 49 L. ed. 713; cited supra.

50 Crump v. Thurber, 115 U. S. 56, 29 L. ed. 328; Rogers v. Van Nortwick, 45 Fed. 513; Patterson v. Farmington Street Ry. Co., 111 Fed.

262.

51 First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969; Feidler v. Bartleson, C. C. A., 161 Fed. 30, cited supra, § 41.

ing, other than the administrator, might prosecute the appeal in his own name. It was held, that where the claimant was the administrator, and a temporary administrator was appointed by the probate court to represent the estate, but the claim was actually contested by an heir of the decedent, who appealed from an order allowing the claim, the question of diversity of citizenship between the parties was to be determined upon the citizenship of such appellant, and not upon that of the temporary administrator.52 In an ejectment instituted in a State court of Pennsylvania by a citizen of Pennsylvania, against the tenant in possession, also a citizen of that State, his lessor, a citizen of Maryland, after a judgment by default against the tenant, was, upon his petition admitted as a defendant to the suit. The new defendant then removed the cause; but the Circuit Court remanded the same for want of jurisdiction; since the remover was a co-defendant with the tenant in possession, a citizen of plaintiff's State.53 Where a stockholder in a corporation sued to enjoin the use by another corporation of stock in the former, upon the ground that the latter had no corporate power to acquire the same; it was held, that the former company was not a necessary party, and that its joinder could not prevent a removal.54 It was held: that a corporation, which had sold all its property and franchises except the mere right to exist, and which had no officers or place of business, was only a nominal party in a suit against a stockholder to make him liable for his unpaid subscription; notwithstanding the fact that the corporation had still the power to reorganize and collect the stockholders' dues.55 But upon a bill for the specific performance of a contract between two individuals for the sale of certain shares of stock issued by a corporation, and to recover damages for the breach of such contract, which bill did not allege the insolvency of the other party to the contract, nor that he was about to dispose of the stock; it was held that no cause of action was stated against the corporation, and that, if joined, it was merely a formal party, which could not affect the jurisdiction.58

52 Schneider v. Eldredge, 125 Fed. 638.

53 Beardsley v. Torrey, Fed. Cas. No. 1,190 (4 Wash. C. C. 286).

54 Higgins v. Baltimore & O. R. Co., 99 Fed. 640.

55 Wellman v. Howland Coal & Iron Works, 19 Fed. 51.

56 Lukas v. Milliken, 139 Fed. 816.

It has been held: that a corporation is a mere formal, and not a necessary, party to a suit to enjoin the use or transfer of certificates of stock which it has issued.57 In an action against a principal and a surety, the surety cannot be considered as a merely formal party.58 In a suit in support of an adverse claim to a land patent, the original applicant is not a formal party, although he has assigned his claim to another person joined in the suit.59 A defendant, who has disclaimed an interest in the controversy,60 or, who has made a default in appearance or pleading,61 is not considered as a formal party, and his citizenship may prevent a removal. The fact that a defendant is pecuniarily irresponsible, so that a judgment against him would be of no value, does not make him a formal party.62

57 County Court v. Baltimore & O. R. Co., 35 Fed. 161.

58 Mutual Reserve Fund Life Ass'n v. Farmer, C. C. A., 77 Fed. 929.

59 Blackburn v. Portland Gold Min. Co., 175 U. S. 571, 44 L. ed. 276.

60 New Jersey Zine Co. v. Trotter, Fed. Cas. No. 10,167; Hax v. Caspar, 31 Fed. 499; Dow v. Bradstreet Co., 46 Fed. 824; Goodnow v. Litchfield, 47 Fed. 753. See Wetherby v. Stinson, C. C. A., 62 Fed. 173; supra. Held contra (as to original jurisdiction), Frazer Lubricator Co. v. Frazer, 23 Fed. 305; (as to right to removal) Wirgman v. Persons, C. C. A., 126 Fed. 449, 451; Willin v. Reagan, 171 Fed. 758. In the former case at least, the disclaiming defendant was not a necessary party. Contra, Day v. Oatis (Mississippi), 37 So. 559; Reed v. Hardeman County, 77 Tex. 165, 13 S. W. 1024; (removal denied). See Cooper v. Preston, 105 Fed. 403; Davies v. Wells, 134 Fed. 139.

61 Putnam v. Ingraham, 114 U. S. 57, 29 L. ed. 65; Brooks v. Clark,

119 U. S. 502, 30 L. ed. 482; Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641; Lederer v Sire, 105 Fed. 529. Contra, Judah v. Iowa Barb-Wire Co., 32 Fed. 561. Steele v. Culver, 211 U. S. 26, 53 L. ed. 74.

62 Deere, Wells & Co. v. Chicago, M. & St. P. Ry. Co., 85 Fed. 876.

Insurance companies which have paid policies on property destroyed by fire caused by the negligence of a third person and have by equitable principles or by the terms of the policies been subrogated to the right of action of the owner against such person may maintain an action thereon in their own name under the laws of Washington, which require actions to be brought in the name of the real party in interest and permit the assignment of such causes of action; and where they join with the owner as plaintiffs, they are parties in interest, and not merely nominal parties for the purpose of determining the removability of the cause. Webb v. Southern Ry. Co., C. C. A., 248 Fed. 618; Palmer et al. v. Oregon-Washington R. & Nav. Co. (District Court, W.

3

2

§ 43. Unnecessary parties to the controversy. In certain cases it has been held: that the citizenship of defendants, who are proper but not necessary nor indispensable parties to the controversy may be disregarded when no decree is entered against them. Such it has been held are: different tort feasors in an action for damages, or ordinarily in a suit for an injunction against them; a leaseholder who has attorned to the plaintiff in a suit to enjoin his lessor from exercising any control over the property; the mortgagor in a suit to determine the ownership of the bond and mortgage; the beneficiary of a trust in a suit by his trustee for a foreclosure. The mortgagor in a suit by the mortgagees to enjoin a public board from reducing charges for public service; a person for whose benefit a corporation was organized in a suit to enjoin such corporation from operating a ferry; defendants who have been made parties to a suit merely because they are alleged to be indebted to the principal defendant; in a suit for an accounting of lands sold by a corporation, the stockholders and incorporators of the same, who have procured the conveyance to it of the lands, in which the plaintiffs claimed an interest; 10 the administrator of one of the heirs in a suit by the survivors for a decree that the executor holds the residuary estate in trust for all the heirs; 11 the debtor in a suit by a creditor to set aside a judgment against him, alleged to have been obtained by fraud; 12 the agent for another

9

D. Washington, S. D., October 22, 1913), No. 1,367, 208 Fed. 666.

$ 43. 1 Barney v. Latham, 103 U. S. 205, 215, 26 L. ed. 514, 518; Ruckman v. Ruckman, 1 Fed. 587; Deford v. Mehaffy, 14 Fed. 181; Corbin v. Boies, 18 Fed. 3; Cella, Adler & Tilles v. Brown, 136 Fed. 439. See infra, § 119.

2 Coggey v. Bird, C. C. A., 209 Fed. 803, action for conspiracy.

3 Puget Sound Traction, Light & Power Co. v. Lawrey, 202 Fed. 263; Wieland State Engineers v. Pioneer Irr. Co., 238 Fed. 519, C. C. A., but see infra, § 120.

4 Port of Seattle v. Oregon & U. R. Co., 242 Fed. 986.

5 Ruckman v. Ruckman, 1 Fed. 587.

6 Smith v. Bell, C. C. A., 217 Fed. 243.

7 De Pauw University v. Pub. Service Co., of Oregon, 247 Fed. 183; but see Mahon v. Guaranty Tr. & S. D. Co., C. C. A., 239 Fed. 266.

8 New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817.

9 Deford v. Mehaffy, 14 Fed. 181. 10 Barney v. Latham, 103 U. S. 205, 215, 26 L. ed. 514, 518.

11 Mahon v. Guaranty Trust & Safe Deposit Company, C. C. A., 239 Fed. 266.

12 Corbin v. Boies, 18 Fed. 3.