Page:Federal Reporter, 1st Series, Volume 6.djvu/760

 748 fEDEEAL EEPOBTER. �assigning the reaaons for its action, the court {Daly, J.) held that it was its duty to examine the right of removal; that, as the right of removal depended on the nature of the contro- versy, such right must be determined by an inspection of the complaint, as the only pleading then before the court ; that the petition for removal was not a pleading, and could not vary the cause of action stated in the complaint ; that the defendant could not use bis petition as a pleading to raise an issue with the plaintiff on the allegations of the complaint, and show a controversy entitling him to remove the cause; that the deniai in the petition as to George S. Mallory did not show the controversy to be one wholly between the peti- tioner and the plaintiff ; that if the .complaint states a cause of acMon which can be determined only when ail the parties to the action are before the court, a deniai by one of the de- feiidanta of the facta eet forth. in the complaint does not sever the controversy a» to him, npr show that the cause may pro- ceed afi against himself witljout the presence of the other d&f0ndant; that an injunotipii ia not the sole object of the. action as re&peets M. H. Mallory, as reqi^ired by subdivision 3*of section 639! of the EeviBQdf^tatutes of the United. States ; that.'UDider that subdivision,: thereicannot.be la, filial deter- luinatioEi of thei controversy, sp far 8,3 concerns him, without the;prp8ence of G;, S. Mallory as a, .defendait, under the alle- ga[<tipn8 in the complaint; aad that wxder section 3 o| the act of:Mareh 5, 1875, (18 St. at Large, 470,) there isnot a con- troversy which is wboUy between the plaintiff and M. H. Mallory, and which can be fuUy determined as between them, for the reason that, on the complaint, the plaintiff has no controversy with M. H. Mallory separate from G. S. Mal- lory. �There has been filed in this court, on the part of one or both of the defendants, a copy, certiiied by the clerk of the stajte, court, of the record of that court. The plaintiff now moves in this court to remand the cause to the state court. The motion is opposed by counsel for M. H. Mallory. It is contended by him that the question of the existence of the facts on which the right of removal depends is an issuable ��� �