that they would intervene,27 by succession through an assignment of the plaintiff's interest,28 or by operation of law; 29 nor by the filing of counterclaims or cross bills between defendants who are citizens of the same State.30 It has been said that when an amendment which is not compulsory brings in new parties the defense of citizenship must be determined from the bill as amended.31

Where in a bill between two parties for an accounting it appears that the partnership assets alleged in the bill are worthless, the Court has jurisdiction to enter decrees against the partners in favor of the intervening creditors irrespective of the citizenship of the latter.32 Jurisdiction was taken of a creditor's bill to enforce a State judgment against the interest. of a surviving partner although the result might be to compel defendants who were both residents of the same State to litigate their mutual demands.33 Where the court, because of diversity of citizenship, originally had jurisdiction its right to consider a counterclaim which might be the subject of an independent suit and does not affect matters alleged in the original bill depends upon the citizenship of the parties to the counterclaim.34

It has been held that there is a controversy between citizens of different States when one of them has a justiciable claim. against the other, although the latter consents to the jurisdiction and to the appointment of a receiver before the complainants had obtained judgment in an action at common-law; 35 and in the case of a suit by a stockholder to procure the appointment

Clyde v. Richmond & D. R. Co., 65
Fed. 336.

27 Fraser v. Cole, C. C. A., 214 Fed. 556.

28 Sioux City Tr. R. & W. Co. v. Trust Co. of North America, C. C. A., 82 Fed. 124; s. c. 173 U. S. 99, 43 L. ed. 628; Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159. Contra, Pittsburgh, S. & N. R. Co. v. Fiske, C. C. A., 178 Fed. 66.

29 Glover v. Shepperd, 21 Fed. 481; Jarboe v. Templer, 38 Fed. 213. Contra, Adams Exp. Co. v. Denver & R. G. Ry Co., 16 Fed. 712.

Fed. Prac. Vol. I-9

30 Portland Wood Pipe Co. V. Slick Brox. Const. Co., 222 Fed. 528. 31 Patterson v. D. L. & Hudson Co., C. C. A., 251 Fed. 255.

32 Lackner v. McKechney, C. C. A., 252 Fed. 403.

33 Feidler v. Bartleson, C. C. A., 161 Fed. 30.

34 Cleveland Eng. Co. v. Galion, D. M. Truck Co., 243 Fed. 405.

35 Re Metropolitan Railway Receivership, 208 U. S. 90, 52 L. ed. 403.

of a receiver because of insolvency, when his shares have been assigned to him for the purpose of the commencement of the suit.36

§ 41. Parties to the controversy. A controversy between citizens of different States is one in which every party upon one side is a citizen of a different State from that of every party upon the other.1 In determining between whom the controversy exists, the court is not bound by the title of the cause or the form of the pleadings; but should examine the record, ascertain the matter in dispute and arrange the parties on opposite sides of the same, according to the facts, no matter what their technical place as plaintiffs or defendants may be.2

By making defendants those who are necessary parties plaintiff, jurisdiction is not conferred upon a Federal Court, where, if they had been made plaintiffs, the necessary diversity of citizenship would not have existed.3

It has been held that a party whose claim is adverse to the complainant is on the opposite side of the controversy to him, although their relations are not hostile, and that the jurisdiction is not defeated because the complainant seeks to compel defendants, who are citizens of the same State, to litigate a dispute between them in the Federal Court, when the plaintiff has a cause of action against them both.5

The jurisdiction must appear on the face of the record. Where one of the parties is made a defendant merely because he has refused to join as a party plaintiff, he is considered to be on the same side of the controversy as the plaintiff, when the jurisdiction is determined; 7 unless there is a substantial

468, 25 L. ed. 593; Pacific R. Co. v. Ketchum, 101 U. S. 289, 25 L. ed. 932; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Carson v. Hyatt, 118 U. S. 279, 286, 30 L. ed. 167, 169; Blacklock v. Small, 127 U. S. 96, 32 L. ed. 70; Evers v. Watson, 156 U. S. 527, 39 L. ed. 520; Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397); Dodge v. Perkins, Fed. Cas. No. 3,954 (4 Mason, 435); Burke v. Flood, 1 Fed. 541, 6 Sawyer, 220; Marvin V. Ellis, 9 Fed. 367; Sayer v. La Salle & P. Gaslight & Coke Co., 14 Fed. 69, 9 Biss. 372; Anderson v. Bowers, 40 Fed. 708; Brown v. Murray Nelson & Co., 43 Fed. 614; Mangels v. Donau Br. Co., 53 Fed. 513; Pittsburg, C. & St. L. R. Co. v. Baltimore & O. Ry. Co., 61 Fed. 705, 10 C. C. A. 20, 22 U. S. App. 359; Cilley v. Patten, 62 Fed. 498; Oberlin College v. Blair, 70 Fed. 414; Hutton v. Joseph Bancroft & Sons' Co., 77 Fed. 481; Reese v. Zinn, 103 Fed. 97; Boatmen's Bank v. Fritz

len, C. C. A., 135 Fed. 650; Mirabile Corp. v. Purvis, 143 Fed. 920; Miller v. Lynde, 2 Root, 444, 1 Am. Dec. 86; Kelly v. Dolan, 218 Fed. 966.

3 Lindauer v. Compania Palomas, etc., C. C. A., 247 Fed. 428.

4 Federal Mining & Smelting Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 187 Fed. 474.

5 Feidler v. Bartleson, C. C. A., 161 Fed. 30. But see First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969; cited infra, § 42.

6 Bell v. Ohio Life Ins. Co., Fed. Cas. No. 1,261.

7 Edgerton v. Gilpin, Fed. Cas. No. 4,280 (3 Woods. 277); Missouri v. Alt, 73 Fed. 302; Johnson v. Ford, 109 Fed. 501; Einstein v. Georgia, S. & F. Ry Co., 120 Fed. 1008; Joseph Dry Goods Co. v. Hecht, C. C. A., 120 Fed. 760; Menefee v. Frost, 123 Fed. 633. See also Bland v. Fleeman, 29 Fed. 669; Woodrum v. Clay, 33 Fed. 897; Megibben's Adm'rs v. Perin, 49

dispute between him and the plaintiff as to the division of the proceeds, or some other question involved in the suit; in which case it has been held, that he is on the side of the controversy opposite to such plaintiff. It was said: that if the jurisdiction of the court would be ousted by making complainants all interested in obtaining the relief prayed, those who are citizens of the same State with the real defendants may refuse to join in the suit, and may be made defendants. In an action by two of three trustees against a corporation residing in another State, it was held, that the fact that one of the trustees, who refused to join as plaintiff in the suit, and was made a defendant, was a citizen of the same State as the corporation, did not deprive the Federal court of jurisdiction, on the ground that the trustee residing in the same State with defendant was a necessary party plaintiff, since that trustee was made such in order that the rights of all interested parties might be determined in one proceeding.10

In a suit by taxpayers against county officers and bondholders, to enjoin payment of the bonds, the defendant officers were presumed to be on the same side of the controversy as the taxpayers.11 Complainant, a citizen of Iowa, filed a bill charging that a judgment had been fraudulently obtained against a city of Iowa, in favor of defendant, citizen of another State, by means of a combination between him and others not made parties to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and recorder of the city were made defendants, that they might be restrained from paying the judgment pendente lite, but there was no charge that they had participated in the fraud, or that they had any interest adverse to complainant. It was held: that, though there was no separate controversy between complainant and the defendant charged. with the fraud, the other defendants were only nominal parties, their interest being in fact adverse to the latter; and their

Fed. 183; approved as to this point upon reversal. Perin v. Megibben, C. C. A., 53 Fed. 86, 91.

8 Everett v. Independent School Dist. of Rock Rapids, 109 Fed. 697; Wood v. Deskins, C. C. A., 141 Fed. 500.

9 Wisner v. Ogden, Fed. Cas. No. 17,914 (4 Wash. 631).

10 Einstein v. Georgia Southern & F. Ry. Co., 120 Fed. 1008. See Monmouth Inv. Co. v. Means, C. C. A., 151 Fed. 159; Georgia S. & F. Ry. Co. v. Einstein, C. C. A., 218 Fed. 55.

11 Harter v. Kernochan, 103 U. S. 562, 26 L. ed. 411; Anderson v. Bowers, 40 Fed. 708.

:

joinder as defendants could not affect his right to have the cause removed. 12 A State granted to a county for school purposes swamp lands located in the county, which had been donated to the State by Congress. A bill was filed in a State court by the State, on behalf of the county school board, against the county and certain citizens of other States, to set aside conveyances of such lands. Defendants other than the county sought to remove the cause to the Federal court on the ground of diverse citizenship. It was held that the county was a necessary party, and, it and complainant being fellow citizens, the suit could not be removed.13 Where the validity of a mortgage is in question, the mortgagor is presumed to be on the same side of the controversy as the other parties who attack the mortgage.14 It has been held: that in an action by a mortgagee to cancel certain mortgages and to foreclose a subsequent trust deed to the same property, although the cestuis que trustent have a common interest with plaintiff in showing the discharge of these mortgages, they are nevertheless his adversaries as to the other matters in controversy, and will not be rearranged as parties plaintiff, so as to show diversity of citizenship.15 It has been held that in a suit for a partition, where all the defendants were citizens of different States from that of the plaintiffs' citizenship, there should be no re-alignment of parties to defeat the jurisdiction because there were disputed questions in the case between the plaintiffs, which did not appear in the bill, although they might subsequently arise and be determined in the suit.16 Where one tenant in common brought a suit against his co-tenant and others for partition of the land held in common, and to quiet the title as against claims of the defendant. other than his co-tenant, but did not press it as a bill for partition; it was held that it might be sustained as a bill to quiet the title of the complainant's undivided interest, notwithstanding there was a want of diverse citizenship between him and

12 May v. St. John, 38 Fed. 770. 13 Missouri v. New Madrid County, 73 Fed. 304.

14 Removal Cases, 100 U. S. 457, 469, 25 L. ed. 593; Wolcott v. Sprague, 55 Fed. 545; Boatman's Bank v. Fritzlen, C. C. A., 135 Fed.

650, 658, 660, reversing 128 Fed. 608; United States Mortg. Co. v. McClure, 70 Pac. 543; 42 Or. 190. 15 Springer v. Sheets, 115 N. C. 370, 20 S. E. 469.

16 German Sav. & Loan Soc. v Tull, C. C. A., 136 Fed. 1, 1A