Page:Federal Reporter, 1st Series, Volume 4.djvu/22

 a FEDERAL REPORTER, �as to the citizenship of the parties, the plaintiff is r„ citizen of this state, and the defendants are citizens of other states, and upon that it would seem to be a controversy between citizens of different states, ail of the defendants diiïering in their citizenship from the plaintiff; and it would seem, also, that the application for removal to this court is made under the last clause of section 2 of the act of 1875. That clause is that, in any suit mentioned in the section, if there shall be a controversy which is wholly between citizens of different states, that can be fuUy determined as between them, then one or more of the plaintiffs or defendants actually interested in Buch controversy may remove the cause to the circuit court; that is, ail the defendants being citizens of states other than that of which the plaintiff is a citizen, the application may be made by one or more of them ; and upon such appli- cation, if the cause is in condition to be removed, the removal may be had without the concurrence of others of the defend- ants. �But there seems to be a difficulty as to the condition of the case. As stated before, judgment has been rendered as to two of the defendants, and they have taken an appeal to the supreme court of the state. As to them, the cause is not in a condition for removal, because it has passed to an appel- late tribunal, and the rule is that the removal must be had be- fore the trial of the cause. As to the other defendants in the cause, — those who have been served and made this application for removal, and those who have not been served, — the causu is in a condition for removal. But the controversy which is mentioned in this section ïs regarded by the court as an en- tire thing, — that is to say, the controversy is between the plaintiff and ail these defendants, — and it stands now in this attitude : that the controversy as to two of the defendants is pending in the supreme court of the state, and as to the others, in the district court of the state, and it cannot be removed at ail unless it be removed as to ail. We must have the whole of it, if we are to have any; and because aa to two of the de- fendants it is not removable, for that reason it is not reniov- able as to any. We have heretofore held that in a cause irx ����