Page:Federal Reporter, 1st Series, Volume 1.djvu/550

 642 EEDERAIi BEPOItl.ii">. �Removai, U^^)EIl Section 639, IIbv. St.— ^., a citizen of California, filed his bill in equity as a stooltliolder therein against the 0. V. M. Oo., a California corporation, the P. W. L. & P. Ce, also a California cor- poration ; F., a citizen of California, and M. & F., citizena of Nevada, ail the latter being stockholders and offloera, or agents, of both corpora- tions, for an account between said corporations, and between the P. W. L. & F. Co. and F. M. & F., and for a recovery from said defendants by the C. V. M. Co. of a large amount of profits on numerous contracts alleged to have been fraudulently made in pursuance of a conspiracy, through defendants F. M. F. and O'B., acting as offlcers and agents of both corporations, and which profits came to the possession of F. M.. F. and O'B. in dividends from P. W. L. <fc F. Co., ihe parties other than the corporations being copartners in business, and their acts coraplained of being their joint acts for their joint beneflt as such copartners. The suit having been removed from a state court to the TJnited States circuit court as to M. & F., citizens of Nevada, under section 639, Rev. St., on motion to remand, held, that there could not be a final determination of the whole controversy as to M. & F. without the presence of the P. W. L. & F. Co. and F., and that for this reason the suit was not removable as to M. & F. under the provisions of said section. �Sawybb, J. This cause having been removed from the state court on the petition of ail the defendants, under the first clause of section 2 of the act of 1875, and by the defendants, Mackey and Fair, as to them, under the act of 1866, as car- ried into section 639 of the Revised Statutes, second sub- division, the complainant moved to remand it to the state court on the ground that this court has no jurisdiction, and that the case is not removable under either act. Upon the principle adopted in the Sewing Machine cases, (18 Wall. 553,) which arose under the act of 1867, and under the de- cision of the supreme court, made at the present term, in Meyer et al. v. The Delaware Railroad Construction Company, which arose under the first clause of section 2 of the act of 1875, and presented the point, I regard it as settled by that court that to remove a case under the latter provision it is necessary that ail of the persojis constituting the party on one side of the controversy must be citizens of different states from those on the other side. But for the purpose of removal the parties may be transposed and arranged in their proper positions, with reference to their interest in the controversy, without regard to their formai position as plaintifs or de- fendants on the record. This is the rule, as I understand it. ��� �