BROOKS
v.
CLARK.

*506 Mr. Frank P. Prichard and Mr. John G. Johnson for plaintiff in error.

Mr. Pierce Archer for defendant in error.

*509 MR. CHIEF JUSTICE WAITE after stating the case as above reported, delivered the opinion of the court.

The action as originally brought was a joint action on a joint liability of Josiah D. Brooks and Charles H. Brooks as partners, and, according to Putnam v. Ingraham, 114 U.S. 57, it was not separable, for the purposes of removal prior to the judgment against Josiah D. Brooks, even after his default. The question we now have to consider is, therefore, whether the judgment against Josiah D. Brooks takes the case out of that rule.

*510 A statute of Pennsylvania, passed April 6, 1830, provided as follows:

"In all suits now pending or hereafter brought in any court of record in this Commonwealth, against joint and several obligors, copartners, promisors or the indorsers of promissory notes, in which the writ or process has not been or may not be served on all the defendants, and judgment may be obtained against those served with process, such writ, process or judgment, shall not be a bar to recovery in another suit against the defendant or defendants, not served with process." 1 Brightly's Purdon's Digest, 11th ed., 953, § 43.

Another statute, passed April 4, 1877, enacted as follows:

"Where judgment has been or may hereafter be obtained in any court of record of this Commonwealth, against one or more of several codefendants, in default of appearance, plea or affidavit of defence, said judgment shall not be a bar to recovery in the same suit against the other defendants, jointly, or jointly and severally liable as coöbligors, copartners, or otherwise." Ib. 954, § 49.

By another statute, passed August 2, 1842, it was provided that in all actions instituted against two or more defendants, in which judgment may be entered on record at different periods against one or more of the defendants, by confession or otherwise, the entries so made "shall be considered good and valid judgments against all the defendants, as of the date of the respective entries thereof, and the day of the date of the last entry shall be recited in all subsequent proceedings by scire facias or otherwise, as the date of judgment against all of them, and judgment rendered accordingly."

And; "When an entry of judgment ... shall be made on the records of any court against two or more defendants, at different periods, such entries shall operate as good and valid judgment against all the defendants; and the plaintiff may proceed to the collection of the money due thereon, with costs, as if the entries had all been made at the date of the latest entry." Ib. §§ 45, 46.

This is a proceeding in the original suit and on the original cause of action. If a judgment shall be rendered against *511 Charles H. Brooks, it will be a judgment in the original action, the same in all respects, except as to date, that it would have been if he had been served with process and had put in the same defence before the judgment against Josiah D. Brooks. He voluntarily appeared "in the same suit" by accepting service of the original summons, but with an extension of time to put in his personal defence. Had the same thing been done before the judgment against Josiah D. Brooks, there could have been no removal on the petition of Charles H. Brooks, or on the petition of all the defendants, because the suit would have been against the two defendants, one of whom was a citizen of the same State with the plaintiff, and a separate defence by one. This, it has often been held, would not show or create a separable controversy, within the meaning of the removal act. Hyde v. Ruble, 104 U.S. 407; Ayres v. Wiswall, 112 U.S. 187, 193; Louisville & Nashville Railroad v. Ide, 114 U.S. 52; Putnam v. Ingraham, 114 U.S. 57; St. Louis, &c., Railway v. Wilson, 114 U.S. 60; Pirie v. Tvedt, 115 U.S. 41; Starin v. New York, 115 U.S. 248, 259; Sloane v. Anderson, 117 U.S. 275; Fidelity Ins. Co. v. Huntington, 117 U.S. 280; Core v. Vinal, 117 U.S. 347; Plymouth Mining Co. v. Amador Canal Co., 118 U.S. 265. It is true there is now no longer any controversy upon the original cause of action with Josiah D. Brooks; against whom a final judgment has already been rendered, but neither was there in Putnam v. Ingraham, supra, with the defendant, Morgan, who was in default, and made no defence. In this respect the two cases differ only in degree, and not in kind. In this case the proceedings had gone one step further than in the other, and the default of Josiah D. Brooks had been fixed by the judgment. In principle, however, the cases are alike.

Much reliance was had in argument on Yulee v. Vose, 99 U.S. 539. The petition in that case was filed under the act of July 27, 1866, 14 Stat. 306, c. 288, where only the separate controversy of the petitioning defendant could be removed, and the plaintiff was allowed to proceed against all the other defendants, in the State court, as to the remaining controversies in the suit, the same as if no removal had been had. *512 Under that statute the suit could be divided into two distinct parts — one removable and the other not. That which was removable might be taken to the Circuit Court of the United States, and that which was not removable would remain in the State court for trial without any reference whatever to the other. The removal had the effect of making two suits out of one. Not so with the act of 1875. Under that, it was held in Barney v. Latham, 103 U.S. 205, that, if a separable controversy exists, a removal for such cause takes the whole suit to the Circuit Court, and leaves nothing behind for trial in the State court.

In Yulee v. Vose there were several causes of action embraced in the suit — some joint against Yulee and all the other defendants, and one against Yulee alone as the endorser of certain promissory notes. Upon a trial, judgment had been rendered in favor of all the defendants upon all the causes of action. This judgment was affirmed by the highest court of the State as to all the causes of action, except that against Yulee alone as endorser. As to that it was reversed and the cause sent back for a new trial. It was under these circumstances that it was said "it 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;" and a removal of this controversy, thus actually separated from the rest of the case, was directed upon the petition of Yulee, filed after the case had been sent back for trial as to him alone, and before the trial or final hearing, which was in time under that statute. Upon this removal only the separate controversy with Yulee was carried to the Circuit Court, and the judgment in that would have no connection whatever with the other parts of the case, which remained undisturbed in the State court, where the record continued, so far as they were concerned.

In the present case, however, and under the present law, as ruled in Barney v. Latham, supra, the whole original suit, including the judgment against Josiah D. Brooks, must be taken to the Circuit Court, because this is a proceeding under the Pennsylvania statute, in that suit, to obtain a judgment *513 therein against Charles H. Brooks. If the removal should be allowed and a judgment rendered in favor of Charles H. Brooks, the Circuit Court would be compelled to carry into execution the judgment of the State court against Josiah D. Brooks, which would in no sense be a judgment of the Circuit Court, but of the State court alone. As Charles H. Brooks made himself a party to the "same suit," he voluntarily subjected himself to the obstacles which were in the way of removing his controversy to the Circuit Court, and must be governed accordingly. Fletcher v. Hamlet, 116 U.S. 408. Had the plaintiffs proceeded against him under the other statute and brought another suit, the case would have been different, because that would have been a separate and distinct action to which there was no other defendant but himself; but this proceeding is merely auxiliary to the original suit, and in all respects a part of that suit, from which it cannot be separated. If a judgment shall be rendered against Charles H. Brooks, that judgment and the judgment already existing against Josiah D. Brooks "will be treated as one on the scire facias or execution." Finch v. Lamberton, 62 Penn. St. 370.

The order remanding the case is

Affirmed.