Page:Federal Reporter, 1st Series, Volume 7.djvu/145

 POND V. SIBLEY. 133 �served with the summons therein, or any eopy thereof. The petition contains the other necessary averments, and prays for the removal of the suit into this court. �A copy of the record in the suit in the state court was filed in this court on the eleventh of April, 1881, and on the same day the Atlanta Company entered its appearance in the suit in this court, The plaintiffs now move that the suit be re- manded to the state court. �The plaintififs eontend that the suit, though primarily one for preventive relief, is bne in which, in the state court, under section 1207 of the Code of Procedure, if there were an answer, the court might permit the plaintiffs to take any judgment consistent with the case made by the complaint and embraced within the issue; that, therefore, if, on the appearance of the two corporations, the lease were adjudged to be valid between them, as a corporate act, but it was held that the individual defendants were guilty of a breach of trust in consenting to it, they could be required to make good the loss sustained by the plaintiffs ; that unless the individ- ual defendants are all of them unnecessary parties, or if any one of them is, in any respect, a substantial party, the suit must be remanded; that a judgment between the plaintiffs and the Atlanta Company would not bind the Bichmond Company ; that the suit is really one against the individual directors of the Atlanta Company rather than one against the two corporations, the corporations being made parties because of their interest in the controversy ; that if it should be held that the lease bas been executed, but is void for want of power, and if the Eichmony Company bas taken possession under it, the question would arise how the road is to be taken out of its hands, it not being in court by service of process or appearance; and that ihe contention between the plaintiffs and the Atlanta Company might not dispose of the whole controversy. �This removal is sought under subdivision 2 of section 2 ot the act of March 3, 1875, (18 St. at Large, 470,) which pro- vides that when, in any suit mentioned in said section, "there shall be a controversy which is wholly between citi- ��� �