
    GOLDEN v. BRUNING et al.
    (Circuit Court, D. Indiana.
    February 12, 1896.)
    No. 9,280.
    Removal o> , bes — Separable Controversy.
    G., as administrator of J. F. 8., deceased, brought a suit in a court of the state of Indiana against W. H. B., a citizen or New York, and C., a citizen of Indiana, for an accounting of the affairs of a partnership composed -of J. F. B. and W. tí. B., the assets of which were alleged to consist in part of real estate purchased for partnership purposes. It was averred that such real estate was originally conveyed to C., who held it in trust for the lirm for a ti me, and then conveyed it to her mother, who held it in trust for the firm until she died, intestate, leaving C., J. F. B., and W. H. B. as. her heirs; and that, after her death, G. and J. F. B. conveyed their interests to W. H. B., in trust for the firm; but that both C. and W. H. B., respectively, claimed the land as their individual property, C. claiming that the deeds made by her were procured by'the fraud of W. Bí. B. Held, that C. was a necessary party to the suit, and there was no separable controversy between the plaintiff ana W. H. B. which could be removed to the federal court.
    McCullough 3c Spaan, for complainant.
    Smith & Kb'NsIy and Miller, Winter-& Elam, for defendants.
   BAKER, District Judge.

On June 27,1895, the complainant, John M. Golden, administrator of the estate of J ohn F. Bruning, deceased, filed his bill in equity in the circuit court of the county of Jefferson, in the state of Indiana, for an accounting and settlement of the affairs of a partnership alleged to have existed between the decedent, in his lifetime, and William H. Bruning, under the firm name and style of John F. Bruning & Co. Clara Copeland and her liurkmd, William M. Copeland, are made parties defendant with William íl Bruning, to reach the entire assets of the firm, and to have a i'rfi anil final accounting of the partnership affairs. The'complaint avers that, .at the time of the death of John F. Bruning, i:be iirai. which had been ¡‘engaged in the mercantile business, was the owrei oí a large amount assets consisting of personal property and cbobes action, of the Who of $150,000, and of two certain pam-ls of real estate, of the aggregate v due of $30,000. It is futí her aveived that one parcel of the K'fjl esisue, of the value of $20,000, was; purchased by the firm with pisurneivAp assets for the use of the .cm in the conduct of its bu sine;,1:,, and -ihat it was so used Anm íilio time of its purchase until the Kvyuinatkm of ihe partnership, and has continued to he so used by Wííiiam ¡I, Bruning, as surviving partner, ever since; that, at the time said real estate was purchased, it was conveyed to Clara Copeland, in Wist for the use and benefit of the firm; that she contin-ikvI to hold ihe title thereto i?< trust as aforesaid until February 26, bibi when, by deed, she cotmq od the same to her mother, Catherine .A. t ailing, who huid the sane: in trust for the firm until November "U. 89, when she died nuca ¡.ate, at Jefferson county, Ind., leaving, no he»' only heirs, John 1". Bruning, since deceased, William H. Brun-iip-, and Clara Copeland; -'bet, since her death, John F. Bruning and 'Ciar;), Copeland haw, respectively, conveyed any interest they might June in said real estate to William H. Bruning, in trust to hold the tame for the use and benefit of the partnership; that Clara Copeland (JAMS she is the individual owner in fee simple of said real estate, nrnder the deed executed to her therefor, as sole grantee therein, and ii hat by the fraud and coercion of William H. Bruning, the conveyance from her to her mother was procured, and that likewise, by his fraud and coercion, the respective deeds from her and her father were procured, and therefore Clara Copeland and her husband are made parries defendant, that she may answer as to her interest in said real It is further averred that William H. Bruning claims to be ■■ b' nole owner of all of said partnership assets and property, and has » 1 1 rted the same to his own use. The defendant William II. Brun-ing, v:ho is a citizen of the state of New York, filed his petition in the s» uie court to procure the removal of the suit inio this court, on the ground that Clara Copeland, who is a citizen of the state of Indiana, was joined as a party defendant in had faith, and io prevent a removal, and on the further ground that the cause of action is separable, and «an be fully tried and determined without her presence as a party «MVddant. The cause having been removed, the complainant now •noves the court to remand the same to the circuit court of Jefferson «amity, Ind.

The averments in tbe petition that Clara Copeland was wrongfully joined as a defendant, to avoid a removal, can be of no avail in this court, upon a motion to remand, until they are proved; and, so far as tbe record beforé me discloses, tbe proof to support sucb claim is wholly insufficient, and, besides, it is clearly contradicted by opposing proof. Tbe removal, therefore, cannot be supported on tbe ground that she was wrongfully made a defendant to retain tbe case in tbe state court.

It is not easy to deduce from tbe decisions a general rule on tbe subject of parties in equity which is concise, and yet sufficiently com- „ prehensive to meet every case. While courts of law require no more/ than that tbe persons directly and immediately interested in tbe subject-matter of tbe action, and whose interests are of a strictly legal nature, should be parties to it, “it is a general ru,le in equity that all! persons materially interested, either legally or beneficially, in tbe subject-matter of a suit, are to be made parties to it, either as plaintiffs or as defendants, so that there may be a complete decree which shall bind them all.” Story, Eq. Pl. (10th Ed.) § 72; Gregory v. Stetson, 133 U. S. 586, 10 Sup. Ct. 422; Sedgwick v. Cleveland, 7 Paige, 287. “The general rule, undoubtedly, is that all persons materially interested in the result of a suit ought to be made parties, so that the court may finally determine the entire controversy, and do complete justice by adjudging all the rights involved in it.” Vetterlein v. Barnes, 124 U. S. 169, 171, 172, 8 Sup. Ct. 441; Story v. Livingston, 13 Pet. 359, 375; Shields v. Barrow, 17 How. 130, 139. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it will be sufficient if each party has an interest in some material matters in the suit, and they are connected with the others. Brown v. Safe-Deposit Co., 128 U. S. 403, 412, 9 Sup. Ct. 127; Addison v. Walker, 4 Younge & C. Exch. 442; Parr v. Attorney General, 8 Clark & F. 409, 435; Worthy v. Johnson, 8 Ga. 236. It is at once apparent that the only way in which the complainant, as administrator of the estate of the decedent, can reach all of the partnership assets and have a complete and final accounting and settlement thereof,.is by a\suit in equity to which all.persons claiming an adverse interest in any material part of such partnership assets are made parties defendant. In a suit to which William H. Bruning alone was made a party defendant, the question whether the real estate claimed by him as well as by Clara Copeland is partnership assets could not be finally and completely determined. In reference to this real estate, the claim of the complainant against each of the defendants is the same, and that claim is that the real estate in question constitutes a part of the partnership assets of the late firm of John F. Bruning & Co. That question cannot be fully and finally determined in a suit to which William H. Bruning alone is a party defendant. That part of the controversy involved in the suit in which Clara Copeland asserts that the real estate in question is not partnership assets, but is her individual property, would be left wholly undetermined, and its settlement would require a suit between her and the complainant, involving the same question as that involved in the suit between William H. Bruning and the complainant, namely, is said real estate partnership property?

In Torrence v. Shedd, 144 U. S. 527, 530, 12 Sup. Ct. 726, the supreme court said:

“But, in order to justify such removal on the ground of a. separate controversy between citizens of different states, there must, by the very terms of the statute, be a controversy which can be fully determined as between ihem; and, by the settled construction of this section, the whole subject-matter of the suit must be capable of being finally determined as between them, and complete relief afforded as to the separate cause of action, without The presence of others originally made parties to the suit.”

xlnd the court further said:

“A defendant has no right to say that an action shall be several which a plaintiff elects to bo joint. A separate defense may defeat a joint recovery, but it cannot deprive a plaintiff of his right to prosecute his own suit to final determination in his own way. The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings.”

One of the material matters in controversy is whether or not the real estate in question is a partnership asset, as alleged in the complainant’s hill of complaint. It is averred that both defendants deny This, and this denial presents a controversy which the complainant cannot have fully determined without the presence of both of these adverse claimants, although they controvert his right (hereto on different grounds. When the statute speaks of a separate controversy between citizens of different: states which can be fully determined as between them, it must mean that the whole cause of action disclosed in the pleadings of the plaintiff can be fully determined as between him and the removing party, without the presence of other parties. It does not contemplate the splitting up into different: parts of a cause of action which the plaintiff is entitled to prosecute as a single suit, simply because a part of the cause might he fully determined as between the parties before the court, leaving the other cart to be determined in another independent: suit. In re Jarnecke Ditch, 69 Fed. 161, and cases there cited.

Testing the complaint by these principles, it follows that a material part of the subject-matter in controversy involves only a single cause of action against both defendants. The case of Shainwald v. Lewis. 108 U. S. 358, 2 Sup. Cf. 385, is much in point.

Remanded, at the cost of the petitioner.  