Supreme Court of United States.
*541 Mr. Edward N. Dickerson and Mr. William M. Merrick for the plaintiff in error.
Mr. Philip Phillips for the defendant in error.
*544 MR. CHIEF JUSTICE WAITE, after stating the case, delivered the opinion of the court.
When this suit was commenced in the State court, Vose, the sole plaintiff below, was a citizen of New York, and Yulee a citizen of Florida. If there had been no other defendant but Yulee, he could then have removed the cause to the Circuit Court, under sect. 12 of the Judiciary Act of 1789 (1 Stat. 79), on filing his petition to that effect, and giving the necessary security at the time of entering his appearance. His joinder with other defendants, however, prevented this at that time; and as the suit then stood, it was impossible for him to proceed under the act of 1866, because, although his liability as indorser, in which his co-defendants had no interest, was shown, he was united with them in respect to other matters where there could be no final determination of the controversy, so far as it concerned him, without their presence. When the Court of Appeals decided that there could be no relief in the action, except so far as it related to the liability of Yulee as indorser of the notes, the other parts of the case were disposed of, and that which related to Yulee alone left for final determination. This action of the Court of Appeals separated the controversy in which Yulee was alone concerned as defendant from the rest of the case, and put him for the first time in a condition to invoke the aid of the act of 1866. It is true he was then the sole remaining defendant, but it was in a suit which had been commenced against him and others, and which was still pending undisposed of as to him. Under these circumstances, we are clearly of the opinion that the case was removable, notwithstanding the final judgment in favor of all the other defendants in respect to all the other matters in controversy.
*545 This disposes of the question on which the Court of Appeals based its decision; but as the State court was not bound to surrender its jurisdiction until a case had been made which, upon its face, gave Yulee a right to the transfer, it remains to consider whether the record shows that what was done had that effect.
The petition and accompanying affidavits and bond were filed in court June 5, 1873. This was before the trial and thus in time, under the act of 1866, which in this respect differs from the act of 1789. When the cause was called for trial and after the jury was sworn, the counsel of Yulee directed the attention of the court to the petition for removal, and asked that the complaint be dismissed for want of jurisdiction. This was in effect asking the court to proceed no further in the cause, as it had been withdrawn from the jurisdiction by reason of the proceedings for removal. As no objection was made specifically to the bond which was offered, we are to presume that the security was satisfactory, and that the court refused to withhold further proceedings because a case for removal had not been made.
We think the application was made in time. The trial had not commenced. The most that can be said is that preparations were being made for a trial.
The petition and the affidavits which accompanied it are to be taken together as part of the same instrument. They are also to be considered in connection with the other parts of the record to which they belong.
The evident purpose of the act of 1866 was to relieve a person sued with others in the courts of a State of which he was not a citizen, by one who was a citizen, from the disabilities of his co-defendants in respect to the removal of the litigation to the courts of the United States, if he could separate the controversy, so far as it concerned him, from the others, without prejudice to his adversary. In view of the fact that sometimes in the progress of a cause circumstances developed themselves which made such a transfer desirable, when at first it did not appear to be so, the right of removal in this class of cases was kept open until the trial or final hearing, instead of being closed after an entry of appearance, as was the rule under the act of *546 1789. We think this gives such a party the right of removal at any time before trial, when the necessary citizenship of his co-defendants is found to exist, and the separation of his interest in the controversy can be made. There is nothing in the act to manifest a contrary intention, and this construction does no more than give the party to whom this new privilege is granted an opportunity of availing himself of any circumstances that may appear in his favor previous to the time when he is called upon finally to act. In Insurance Company v. Pechner (95 U.S. 183), we held that the act of 1789 clearly had reference to the citizenship of the parties when the suit was begun, because the party entitled to the removal was required to make his election when he entered his appearance. But here a party otherwise entitled to a removal is embarrassed by the presence of those whom he cannot control. In view of this, the time of making his election is extended until he is brought to trial; and it is not at all in conflict with that case to say that he may avail himself of his release from the operation of the disabilities growing out of his joinder in the action with other defendants, whenever that release occurs, if before trial or final hearing as to him.
When the application for removal was made, it appeared on the face of the record that Yulee, a citizen of Florida, had been sued with other defendants by Vose, a citizen of New York, in the courts of the State of New York, and that a part of the other defendants with whom he had been joined were then citizens of the State of New York. It also appeared that the controversy, so far as it concerned Yulee, not only could be, but actually had been by judicial determination, separated from that of the other defendants. This, as we think, gave Yulee a right to the transfer of his part of the suit to the Circuit Court, and required the State court to proceed no further. Inasmuch as the Court of Appeals has sustained the judgment given after the refusal to permit the transfer to be made, the judgment of the Court of Appeals will be reversed, and the cause remanded for such further action in accordance with this opinion as may be necessary; and it is
So ordered.
