surrn v. Lyon. 53
Upon default judgment was entered against both defendants, under the
practice in that state. Afterwards the non—resident defendant voluntarily
appeared, pleaded to the action, and procured a removal ofthe cause to
the proper federal court. Upon a motion to remand it was urged that
there was no longer any controversy between the plaintiff and the resi-
dent defendant, the judgment concluding their contention. The court ’
ruled against the position taken, and held the federal court to be with- »
out jurisdiction to entertain the suit. So here the non-service of process
upon Hunter cannot change the character of the suit. The cause of ac-
tion declared upon is joint. If removable as for a separable controversy,
the whole suit is here. Barney v. Latham, 103 U. S. 205. The judge
ment must be a joint judgment. There exists no more of a separable
controversy because of non-service than in the case ofa default or judg-
ment following service. To constitute a separable controversy within
the removal clause of the act of 1875 there must exist in the suit a sep-
arate and distinct cause of action on which a separate and distinct suit
might properly have been brought, all the parties on one side of such
separate controversy being citizens of different states from those on the
other. Hyde v. Ruble, 104 U. S. 407; Fraser v. JenmIso*n., 106 U. S. 191,
1 Sup_. Ct. Rep. 171. Nor is jurisdiction aided by the provisions of
Rev. St. 737, authorizing the court to entertain jurisdictionas to parties
properly before the court notwithstanding the absence of necessary par-
ties not inhabitants of, nor found within the district where suit is
brought, and providing that non—joinder of such parties shall not consti-
tute matter of abatement or objection to the suit. The statute is not ap-
plicableto the facts here. The defendant Hunter is confessedly an in-
habitant of, and can be found within the district. He is therefore an
indispensable party, and, being a citizen of the same state with the plain-
tiff', jurisdiction is defeated. Ober v. Gallagher, 93 `U. S. 199. The
cause will be remanded.
_ GBESLLQM, J., concurs. . T
, Smrm et al. v. Lyon- .
i l ’(U1?rvuit Ooun, E. D. Jlhssoum, E'. D. March 21, 1889.) , ,
Fmnmmu. COUBTS—JURISDICTION. A A ` ` V ` .
» Under act Cong. 1887, providing that wherethe jurisdiction of the federal
courts is founded only upon·the fact that the actionis between citizens of dif·
ferent states, suit shall be brought only in thedistrict of the residence of
either the plaintiff or defendant, a suit brought by two persons on a contract.
. · · enteredinto by them as partners cannotbe maintained in a district of which
the defendant and one o the plaintiffs are uomresidents.   . .. -· ‘ - »-
At Law.
Jeferscm Chandler, R. H. Landale, and S. H. West, for plaintiffs.