for a personal decree may be separable from that against all of them for relief from their control.41 A fraudulent joinder of parties for the purpose of destroying separableness of the corporation's controversy and to prevent removal will not be presumed. On this ground it is not necessary that all of the defendants should join in the petition.43 Under the present statute the whole suit is removed where a part thereof is separable and is removed, but separate and distinct actions combined in one proceeding are not within this meaning and do not go up as an entirety.45 § 2972. Diversity of citizenship. As in cases where original jurisdiction of the federal court is invoked, so in a removal case based on diversity all on one side necessary to the action must be of a different citizenship from all on the other.46 Nominal parties and those ent ways, held not separable. Baillie v. Backus, 230 Fed. 711. And see Crawford v. Seattle, R. & S. Ry. Co., 198 Fed. 920, on same point; Pollitz v. Wabash R. Co., 176 Fed. 333, rev'g 167 Fed. 145 (a bill to cancel a bond issue with a stock bonus alleged to have been done by conspiracy); MacGinnis v. Boston & M. Consol. Copper & Silver Min. Co., 119 Fed. 96 (where petitioner, a corporation, was alleged to have conspired with plaintiff's corporation); Hanover Nat. Bank v. Credits Commutation Co., 118 Fed. 110. 41 Suit by stockholders held separable as to an accounting of profits abstracted by the controlling defendant (another corporation) from that part alleging a control in fraud of plaintiffs. Lamm v. Parrot Silver & Copper Co., 111 Fed. 241. 42 The joinder is deemed to have been made in good faith and if correct by the state practice the case is not removable. (Corporation and individuals joined for tort.) Southern Ry. Co. v. Miller, 217 U. S. 209, 54 L. Ed. 732. Suing an individual jointly does not show fraudulent joinder though his finances make it unlikely that any thing will be realized from him. Dowell v. Chicago, R. I. & P. R. Co., 83 Kan. 562, 112 Pac. 136. Joinder of a lessor and its servant cannot be regarded as fraudulent where by the law of the state the lessor is liable with the lessee; and the state law determines whether joinder is proper. Chicago, B. & Q. R. Co. v. Willard, 220 U. S. 413, 55 L. Ed. 521; Illinois Cent. R. Co. v. Sheegog, 215 U. S. 308, 54 L. Ed. 208. See also § 2970, supra. 43 Cochran v. Montgomery County, 199 U. S. 260, 50 L. Ed. 182, 4 Ann. Cas. 451; Chicago, R. I. & P. R. Co. v. Martin, 178 U. S. 245, 44 L. Ed. 1055. 44 Connell v. Smiley, 156 U. S. 335, 39 L. Ed. 443; Barney v. Latham, 103 U. S. 205, 26 L. Ed. 514. 45 Deepwater Ry. Co. v. Western Pocahontas Coal & Lumber Co., 152 Fed. 824 (two condemnations united in one proceeding). 46 Central R. Co. of New Jersey v. Mills, 113 U. S. 249, 28 L. Ed. 949. A corporation chartered by Ohio and then Pennsylvania is a citizen of both and cannot remove from state courts of Pennsylvania a suit by a municipality of that state. Allegheny [§ 2973 improperly joined will be disregarded on inspecting the record sought to be removed,47 but the corporation against which a deficiency judgment in foreclosure is prayed will not be held to be a nominal defendant, though the petition for removal avers that it has been released; since it is the state of the pleadings that determines that fact.48 These rules find frequent illustration in stockholders' suits.49 The corporation must join all of the other defendants in the petition.50 § 2973. - Prejudice or local influence. Not only the corporation which is the primary object of the prejudice and local influence, but also any other corporation or party working out its rights through such corporation may ask removal on that ground.51 The statute defines the quality of prejudice and local influence no further than that it shall be such that the petitioner "will not be able to obtain justice" in the state court or courts because of it. This does not v. Cleveland & P. R. Co., 51 Pa. St. 228, 88 Am. Dec. 579. If a corporation resident with plaintiff be a necessary party, removal is not allowable. Chicago & N. W. Ry. Co. v. Crane, 113 U. S. 424, 28 L. Ed. 1064. The fact that one is then imprisoned in another state does not destroy his citizenship even if it has that effect on his residence. Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. See excerpt from the statute, § 2970, supra, and consult treatises on removal of causes. As to the citizenship of the corporations, see § 390 et seq., supra. 47 Joinder of a servant who was nonfeasant in a duty owing solely to his employer, defendant, will not prevent removal. Kelly v. Chicago & A. Ry. Co., 122 Fed. 286. 48 A corporation liable on the complaint for a deficiency judgment which the state court may award is not a nominal party, even though the petition for removal avers that they have been released. United States Mortg. Co. v. McClure, 42 Ore. 190, 70 Pac. 543. Dismissed McClure v. United States Mortgage & Trust Co., 197 U. S. 624, 49 L. Ed. 911. 49 East Tennessee, V. & G. R. Co. v. Grayson, 119 U. S. 240, 30 L. Ed. 382; Central R. Co. of New Jersey v. Mills, 113 U. S. 249, 28 L. Ed. 949. Further applications of this rule in stockholders' suits, see chapter on Stock and Stockholders, infra. 50 Alien corporation must join its co-defendant, who is a citizen, though he is imprisoned in another state and for that reason is claimed not to be a resident. Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. 51 A bill in a state court to annul a street franchise may be removed at the petition of a nonresident co-defendant mortgagee on the ground that because of prejudice and local influence no fair trial can be had in the state courts. Detroit v. Detroit City R. Co., 54 Fed. 1. Facts considered as showing a wellgrounded belief of local prejudice against a defendant street railway corporation and in favor of plaintiff city preventing a fair trial of a suit to declare its franchise expired. Detroit v. Detroit City R. Co., 54 Fed. 1. mean, however, that the degree of it must be such as to affect the possibility of recovering a favorable or unfavorable judgment, and it is enough to show that it affects the possibility of a judgment's being reached uninfluenced or uncoerced.52 The case need not be a jury case involving questions of fact to come under this clause; an equity case with none but law questions can be removed, even though all such questions could eventually be reviewed on appeal by state judges out of the prejudiced locality.53 Any defendant can remove if the requisite diversity exists to make jurisdiction when the federal court is reached 54 and the requisite amount in controversy; 55 but there need not be a separate controversy as to the petitioner.56 § 2974. Federal questions and defenses involved. The federal questions which will support a removal petition are the same as those which would confer original jurisdiction on the federal courts, and as previously said, few of these are at all peculiar to corporation law.57 If there be such a question it must appear on the pleading of the plaintiff or plaintiffs, and the petition cannot be used to show 52 Detroit v. Detroit City R. Co., 54 Fed. 1. The power of the local judge to call in another judge, not being a right of defendant, does not afford a trial in some other state court so as to deny removal or warrant remand. Detroit v. Detroit City R. Co., 54 Fed. 1. Neither does the fact that only law questions are presented so that the whole question could be gone into by appeal to the state supreme court. Id. 53 It applies to equity suits tried by the court as well as to law cases tried before a jury. Detroit v. Detroit City R. Co., 54 Fed. 1. Removal may be had though none but questions of law are involved which a state judge alone would consider. Detroit v. Detroit City R. Co., 54 Fed. 1. Especially on a showing that the local judges will be embarrassed by importunities and public pressure. Id. 54 The Act of 1887 repealed the earlier statute which required all on one side to be of different states from all on the other side. Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65. Hence a New York corporation could petition in a suit by an Ohio citizen against it and three Ohio corporations. Id. If not all plaintiffs are of the state, then "any defendant" cannot remove on ground of prejudice and local influence. Thouron v. East Tennessee, V. & G. Ry. Co., 38 Fed. 673. Joinder of an unnecessary co-complainant cannot affect the right to remove. Id. 55 The jurisdictional amount must appear when removal is asked on this ground. Re Pennsylvania Co., 137 U. S. 451, 34 L. Ed. 738. 56 Whelan v. New York, L. E. & W. R. Co., 35 Fed. 849, 1 L. R. A. 65. 57 See § 2965, supra. If one defendant is a federal corporation it makes the case removable as presenting a federal question over the whole case without dependence on other grounds of federal jurisdiction. In re Dunn, 212 U. S. 374, 53 L. Ed. 558; Lund v. Chicago, R. I. & P. Ry. Co., 78 Fed. 385. [§ 2975 that a defense involving such a question will be made.58 All the defendants must join in the petition, if the controversy is indivisible and only a federal question is presented as a ground for removal.59 82975. Petition and affidavit for removal. Not more than a bare outline of removal procedure can be given. The technicalities of it involve few corporate peculiarities but present many points which must be studied in the light of all the cases.60 The procedure for removal is defined by the Judicial Code, consisting of a verified petition filed with the state court before answer day, accompanied by bond and on written notice of the bond and petition to the adverse party. This applies to all of the grounds already mentioned herein except that of prejudice and local influence, as to which "it shall be made to appear to said district court" (the one to which removal is asked), but the means by which the showing is to be made is only inferentially shown by an allusion later in the statute to affidavits.61 By express provision the petition is now required to be "duly verified," this being a new provision, although it was usually done before. Either by the petition or in the pleadings the jurisdictional .facts must be made to appear,62 which include necessary allegations, in the petition, of course, as to there being a fraudulent or collusive joinder, or other facts; and all such facts must be pleaded as facts and not by mere conclusions.63 In corporation cases the jurisdictional fact of citizenship requires special attention. Most of the state courts do not require that the residence and citizenship of the corporate parties be pleaded with that certainty of fact required in the suits against revenue officers or other federal officers of congress or the federal courts, or suits by aliens against persons who are or were civil officers of the United States) is set out in those sections respectively, which see. 62 The petition need not allege facts of incorporation which appear by the pleadings. Howard v. Gold Reefs of Georgia, Ltd., 102 Fed. 657; Wilcox v. Gibbs Guano Co. v. Phoenix Ins. Co. of Brooklyn, 60 Fed. 929; Shattuck v. North British & Mercantile Ins. Co. of London and Edinburgh, 58 Fed. 609. 63 An allegation of fraudulent joinder to prevent removal should state facts. Dowell v. Chicago, R. I. & P. R. Co., 83 Kan. 562, 112 Pac. 136. 64 federal courts to support jurisdiction depending on such facts, and such must accordingly be supplied by the petition when lacking or at all doubtful. It therefore should state the incorporation as a fact, the state or nation by or under whose laws it was had, and the place where, if foreign, it is doing business and situated within the state, also the fact, when material, that it is a "nonresident." 65 All of these facts must be alleged as of the time of the petition.66 It is equally important and necessary that the citizenship as well as the residence of plaintiffs 67 and codefendants be stated in like manner and particulars.68 If more than one ground for removal exists it will be advisable to aver each one clearly, since a petition might be sufficient on one ground and not on another unless claimed, or might seem 64 See §§ 3042, 3043, infra. 65 Should allege that it is a citizen of and organized in a given state. Frisbie v. Chesapeake & O. Ry. Co., 57 Fed. 1. "Duly chartered and incorporated under the laws of Great Britain," held sufficient. Robertson v. Scottish Union & National Ins. Co., 68 Fed. 173. In addition to facts of citizenship, the record must show petitioner to be a nonresident. Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Hirschl v. J. I. Case Threshing Mach. Co., 42 Fed. 803; Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. Must allege that defendant corporation is a nonresident and also that it is a corporation existing under the laws of another state, naming it. Allegation that it is a "citizen" of a named state is bad. Lewis v. Clyde S. S. Co., 131 N. C. 652, 42 S. E. 969, rehearing granted 132 N. C. 904, 44 S. E. 666. Contra, holding that facts of incorporation fix residence at same place. Myers v. Murray, Nelson & Co., 43 Fed. 695, 11 L. R. A. 216. Further precedents as to manner of alleging these facts may be found in § 3049, infra. 66 An allegation of petitioner's in corporation and due organization under the laws of a foreign country imports that it was so at the time of filing the petition. Roberts v. Pacifie & A. Ry. & Nav. Co., 104 Fed. 577; same case on error 121 Fed. 785. That petitioner was "originally created" by laws of a named other state is bad. Thompson v. Southern Ry. Co., 130 N. C. 140, 41 S. E. 9. 67 An allegation that plaintiff is a resident of a state does not show that he is a citizen thereof, and a conclusion that parties are citizens of different states does not aid it. Neel v. Pennsylvania Co., 157 U. S. 153, 39 L. Ed. 654. 68 A co-defendant's citizenship as well as his residence must be alleged. Guarantee Co. of North America v. First Nat. Bank, 95 Va. 480, 28 S. E. 909. An erroneous allegation that defendant is a Texas corporation does not prevent removal on proper averments that it is a federal corporation not a citizen with plaintiff. Texas & P. R. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 1132, aff'g 67 Fed. 71. And see Oregon Short Line & Utah Northern Ry. Co. v. Skottowe, 162 U. S. 490, 40 L. Ed. 1048, where the removal petition was insufficient to state a ground. |