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It has been held: that a corporation is a mere formal, and not a necessary, party to a suit to enjoin the use or transfer of certifi cates of stock which it has issued.57 In an action against a principal and a surety, the surety cannot be considered as a merely formal party,58 In a suit in support of an adverse claim to a land patent, the original applicant is not a formal party, although he has assigned his claim to another person joined in the suit.59 A defendant, who has disclaimed an interest in the controversy,60 or, who has made a default in appearance or pleading,61 is not considered as a formal party, and his citizenship may prevent a removal. The fact that a defendant is pecuniarily irresponsible, so that a judgment against him would be of no value, does not make him a formal party.62

57 County Court v. Baltimore & O. R. Co., 35 Fed. 161.

58 Mutual Reserve Fund Life Ass'n v. Farmer, C. C. A., 77 Fed. 929.

59. Blackburn V. Portland Gold Min. Co., 175 U. S. 571, 44 L. ed. 276.

60 New Jersey Zinc Co. v. Trotter, Fed. Cas. No. 10,167; Hax v. Caspar, 31 Fed. 499; Dow v. Bradstreet Co., 46 Fed. 824; Goodnow v. Litchfield, 47 Fed. 753. See Wetherby v. Stinson, C. C. A., 62 Fed. 173; supra. Held contra (as to original jurisdiction), Frazer Lubricator Co. v. Frazer, 23 Fed. 305; (as to right to removal) Wirgman v. Persons, C. C. A., 126 Fed. 449, 451; Willin v. Reagan, 171 Fed. 758. In the former case at least, the disclaiming defendant was not a necessary party. Contra, Day v. Oatis (Mississippi), 37 So. 559; Reed v. Hardeman County, 77 Tex. 165, 13 S. W. 1024; (removal denied). See Cooper v. Preston, 105 Fed. 403; Davies v. Wells, 134 Fed. 139.

61 Putnam v. Ingraham, 114 U. S. 57, 29 L. ed. 65; Brooks v. Clark,

119 U. S. 502, 30 L. ed. 482; Park v. N. Y., L. E. & W. R. Co., 70 Fed. 641; Lederer v Sire, 105 Fed. 529. Contra, Judah v. Iowa Barb-Wire Co., 32 Fed. 561. Steele v. Culver, 211 U. S. 26, 53 L. ed. 74.

62 Deere, Wells & Co. v. Chicago, M. & St. P. Ry. Co., 85 Fed. 876.

Insurance companies which have paid policies on property destroyed by fire caused by the negligence of a third person and have by equitable principles or by the terms of the policies been subrogated to the right of action of the owner against such person may maintain an action thereon in their own name under the laws of Washington, which require actions to be brought in the name of the real party in interest and permit the assignment of such causes of action; and where they join with the owner as plaintiffs, they are parties in interest, and not merely nominal parties for the purpose of determining the removability of the cause. Webb v. Southern Ry. Co., C. C. A., 248 Fed. 618; Palmer et al. v. Oregon-Washington R. & Nav. Co. (District Court, W.

§ 43. Unnecessary parties to the controversy. In certain cases it has been held: that the citizenship of defendants, who are proper but not necessary nor indispensable parties to the controversy may be disregarded when no decree is entered against them. Such it has been held are: different tort feasors in an action for damages,2 or ordinarily in a suit for an injunction against them; a leaseholder who has attorned to the plaintiff in a suit to enjoin his lessor from exercising any control over the property; the mortgagor in a suit to determine the ownership of the bond and mortgage; the beneficiary of a trust in a suit by his trustee for a foreclosure. The mortgagor

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in a suit by the mortgagees to enjoin a public board from reducing charges for public service; 7 a person for whose benefit a corporation was organized in a suit to enjoin such corporation from operating a ferry; defendants who have been made parties to a suit merely because they are alleged to be indebted to the principal defendant; in a suit for an accounting of lands sold by a corporation, the stockholders and incorporators of the same, who have procured the conveyance to it of the lands, in which the plaintiffs claimed an interest; 10 the administrator of one of the heirs in a suit by the survivors for a decree that the executor holds the residuary estate in trust for all the heirs; 11 the debtor in a suit by a creditor to set aside a judgment against him, alleged to have been obtained by fraud; 12 the agent for another

D. Washington, S. D., October 22, 1913), No. 1,367, 208 Fed. 666.

$43. 1 Barney v. Latham, 103 U. S. 205, 215, 26 L. ed. 514, 518; Ruckman v. Ruckman, 1 Fed. 587; Deford v. Mehaffy, 14 Fed. 181; Corbin v. Boies, 18 Fed. 3; Cella, Adler & Tilles v. Brown, 136 Fed. 439. See infra, § 119.

2 Coggey v. Bird, C. C. A., 209 Fed. 803, action for conspiracy.

3 Puget Sound Traction, Light & Power Co. v. Lawrey, 202 Fed. 263; Wieland State Engineers v. Pioneer Irr. Co., 238 Fed. 519, C. C. A., but see infra, § 120.

4 Port of Seattle v. Oregon & U. R. Co., 242 Fed. 986.

5 Ruckman v. Ruckman, i Fed.

587.

6 Smith v. Bell, C. C. A., 217 Fed. 243.

7 De Pauw University v. Pub. Service Co., of Oregon, 247 Fed. 183; but see Mahon v. Guaranty Tr. & S. D. Co., C. C. A., 239 Fed. 266.

8 New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817.

9 Deford v. Mehaffy, 14 Fed. 181. 10 Barney v. Latham, 103 U. S. 205, 215, 26 L. ed. 514, 518.

11 Mahon v. Guaranty Trust & Safe Deposit Company, C. C. A., 239 Fed. 266.

12 Corbin v. Boies, 18 Fed. 3.

defendant in a suit for the specific performance of a contract. made by the latter with the complainant, and for the delivery of securities in pursuance of the same, although such agent claimed an interest in such securities; 13 in a stockholder's suit to enjoin the exchange by his corporation of debentures for new mortgage bonds with a stock bonus, the individual directors, the registrar of the stock, the depositary of the debentures, the trustees of the mortgage, and a committee representing the debenture holders in the transaction.14 It has been held, that the following persons are necessary parties to the respective controversies between their co-defendants and the plaintiff, and that the suits in which such controversies are litigated are not removable for difference of citizenship if they are citizens of the same State as their opponent: a lessor corporation in a suit by its stockholders to set aside a lease which it had made; a lessee in a suit to set aside his lessor's title; 16 the mortgagor who has transferred the mortgaged land in a suit to foreclose the mortgage, where it is sought to charge him with a deficiency; 17 the mortgagor in a suit by the mortgagees to enjoin its employees from trespass upon the property.18 To a bill filed by trustees on behalf of the creditors of a partnership against a corporation of which one of the partners was president, for an accounting and the appointment of a receiver, upon allegations that the president so managed the affairs of the corporation and the partnership as to defraud the latter, and to divert its funds for the benefit of himself and the corporation; the president of the cor

13 Cella, Adler & Tilles v. Brown, 136 Fed. 439.

14 Politz v. Wabash R. Co., 153 Fed. 941.

15 Central R. Co. of New Jersey v. Mills, 113 U. S. 249, 28 L. ed. 949; affirming Mills v. Central R. Co. of New Jersey, 20 Fed. 449.

16 Miller v. Sharp, 37 Fed. 161. 17 Under Act Conn. 1878, providing that the foreclosure of a mortgage shall be a bar to any further suit on the debt unless the persons liable therefor are made parties; where the mortgagor and mortgagee are citizens of that State,

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and the mortgagor has conveyed the premises to a citizen of New York, the mortgagor is a necessary party to foreclosure proceedings against the latter, if it is sought to charge him with any deficiency of the appraised value of the land to pay the mortgage debt, and the case is not a controversy wholly between citizens of different States, and is not removable. Coney v. Winchell, 116 U. S. 227, 29 L. ed. 610; affirming order Winchell V. Carll, 24 Fed. 865.

18 Mahon v. Guaranty Tr. & S. D. Co., C. C. A., 239 Fed. 266.

poration, his partner in the firm and the firm itself.19 In a suit to cancel a judgment the judgment creditor although he has transferred orders by the debtor for the payment of the same to him.20 A party who has acquired the right to redeem certain securities pledged by another, in a suit to foreclose the right of redemption thereof; 21 in a suit to recover a deposit, a savings bank after it has brought in another claimant to the deposit as an additional party defendant, when the money has not yet been paid into court; 22 and, it has been said, any person whose interest is so bound up with the others, that his legal presence as a party is an absolute necessity.23 In an action for the assignment of dower brought by a citizen. of Illinois, it appeared that, of the defendants in possession of the property, one, a citizen of Illinois. It did not appear that the trustee was authorized to represent his interests in the property for the purposes of this suit. It was held: that, as the beneficiary was a necessary party, and a citizen of the same State as plaintiff, the case could not be removed. One who appears by the proceedings in the land office to be the applicant for a patent to a mining claim, and to be asserting his compliance with the statute, is a proper and necessary party defendant in a suit in support of an adverse claim under R. S. §§ 2325, 2326, not merely a nominal party, and he cannot be disregarded in determining the question of the jurisdiction of a Federal court on the ground of diverse citizenship.25

§ 44. Trustees and other representatives. Where a party sues or is sued as a trustee,1 receiver,2 executor or administra

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24 Rand v. Walker, 117 U. S. 340, 29 L. ed. 907.

25 Blackburn V. Portland GoldMin. Co., 175 U. S. 571, 44 L. ed. 276.

§ 44. 1 Chappedelaine v. Dechenaux, 4 Cranch, 306, 2 L. ed. 629; Bonnafee v. Williams, 3 How. 574, 11 L. ed. 732; Susquehanna & W. V. Railroad & Coal Co. v. Blatchford, 11 Wall. 172, 20 L ed. 179; Dodge v. Tulleys, 144 U. S. 451, 36 L. ed. 501; Glenn v. Walker, 27 Fed. 577; Earp v. Coleman, 28 Fed. 340; Morris v. Lindauer, C. C.

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tor, or as the representative of a class, and none of the persons whom he represents is named in the title of the cause," nor appears to have an interest hostile to such representative; his citizenship, not that of his beneficiaries, nor of those whom he represents, nor the location of the trust estate, is to be considered. Where a State sues upon a bond for the benefit of an individual interested, for the purposes of jurisdiction, the suit is treated as if brought by that individual alone.

A., 54 Fed. 23, 4 C. C. A. 162, 6 U. S. App. 510; Gill v. Stebbins, Fed. Cas. No. 5,431 (2 Paine, 417); Adams v. White, Fed. Cas. No. 68; Goodnow v. Oakley, 68 Iowa, 25, 25 N. W. 912. But see Mead v. Walker, 15 Wis. 499. It has been said that the rule does not apply to a mere agent or trustee for another's use, whose agency is not coupled with an interest, but is revocable at any time. Bogue v. Chicago, B. & Q. R. Co., 193 Fed. 728, 734.

2 Farlow v. Lea, Fed. Cas. No. 4,649, 2 Cinn. Law Bull. 329; Davies v. Lathrop, 12 Fed. 353; Brisenden v. Chamberlain, 53 Fed. 307; Snead v. Sellers, C. C. A., 66 Fed. 371; Pepper v. Rogers, 128 Fed. 987.

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3 Childress v. Emory, 8 Wheaton, 642, 5 L. ed. 705; Bonnafee v. Williams, 3. How. 574, 11 L. ed. 732; Rice v. Houston, 13 Wall. 66, 20 L, ed. 484; Blake v. Mckim, 103 U. S. 336, 26 L. ed. 563; Continental L. Ins. Co. v. Rhoads, 119 U. S. 237, 30 L. ed. 380; McElmurray Loomis, 31 Fed. 395; Harper v. Norfolk & W. R. Co., 36 Fed. 102; Banks v. Loveridge, 60 Fed. 963; Popp v. Cincinnati, H. & D. Ry. Co., 96 Fed. 465; Cincinnati, H. & D. R. Co. v. Thiebaud, 114 Fed, 918, 52 C. C. A. 538; Bishop v. Boston & M. R. R., 117 Fed. 771; Laubscher v.

Where a widow

Fay, 197 Fed. 879; Memphis St. Ry, Co. v. Bobo, 233 Fed. 708; Anheuser-Busch Brewing Ass'n v. Kleman, C. C. A., 219 Fed. 522; Browne, Fed. Cas. No. 2,035 (1 Wash. 429); Dodge v. Perkins, Fed. Cas. No. 3,954 (4 Mason, 435); Carter v. Treadwell, Fed. Cas. No. 2,480 (3 Story, 25); Hill v. Henderson, 14 Miss. (6 Smedes & M.), 351; Miller v. Sunde, 1 N. D. 1, 44 N. W. 301; Geyer v. John Hancock Mut. Life Ins. Co., 50 N. H. 224, 9 Am. Rep. 185; Middleton's Ex'rs v. Middleton (Pennsylvania), 7 Wkly. Notes Cas. 144.

4 Omaha Hotel Co. v. Wade, 97 U. S. 13; Jackson & Sharp Co. v. Burlington & L. R. Co., 29 Fed. 474; Putnam v. Timothy Dry-Goods & Carpet Co., 79 Fed. 454; International Trust Co. v. T. B. Townsend Brick & Contracting Co., 95 Fed. 850; Alsop v. Conway, C. C. A., 188 Fed. 568.

5 U. S. v. Myers, Fed. Cas. No. 15,844 (2 Brock. 516); Keever v. Phila. & R. C. & I. Co., 234 Fed. 814; Anheuser Busch Brewing Ass'n v. Kleman, C. C. A., 219 Fed. 522. 6 See supra, § 41.

7 Shirk v. City of La Fayette, 52 Fed. 857.

8 Indiana ex rel. Stanton v. Glover, 155 U. S. 513, 39 L. ed. 243; Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822. Contra, State of

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