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order of Lavender: one on the first day of May, 1873, and the other on the first day of May, 1874, with interest at the rate of 12 per cent. per annum. At what time the suit was begun nowhere appears, but an amended petition was filed on the twenty-second of November, 1879, making Joseph W. Hart ley, Reuben R. Tingley, and many others, parties. To this petition Hartley filed an answer and cross-petition on the second of December, 1879, Tingley an answer on the first of December, 1879, and Parshall an answer and crosspetition at some time before May 17, 1880. The answer and cross-petition of Hartley are found in the record, and from them it appears that he claimed and sought to enforce a lien on the property as security for the payment of money he advanced Kellogg to aid in paying the note due to Lavender in May, 1873. The answer of Tingley and the answer and cross-petition of Parshall are not copied into the transcript. On the seventeenth of May, 1880, the two Gregorys, Lavender, Cantlon, and Phillpot filed demurrers to the answers and cross-petitions of Hartley and Parshall, and to the answer of Tingley, on the ground that they did not state facts sufficient to constitute a cause of action or a defense. These demurrers were heard and overruled by the court on the seventeenth of August, 1880, and 30 days given the demurring defendants to answer.
At the time of the filing of the amended petition the legal title to the property was in E. Mary Gregory, the wife of J. S. Gregory, Lavender having conveyed it to Phillpot and Cantlon after he made his contract with Kellogg, and they having afterwards sold and conveyed it to Mrs. Gregory. On the twenty-eighth of November, 1879, Mrs. Gregory settled all matters in dispute with Kellogg, and he assigned to her his contract with Lavender. After this settlement, on the twenty-second of September, 1880, Mrs. Gregory filed her answer to the amended petition, in which she set up her title to the property and her adjustment of the controversy with Kellogg. On the twentyseventh of September, 1880, Lavender, Phillpot, and Cantlon filed their answer to the cross-petition of Hartley. On the fifth of November, 1880, leave was given Parshall and Tingley to ile amended answers in 40 days, and on the thirteenth of December, 1880, Parshall did file his answer and cross-petition, claiming to be the owner of Kellogg's note to Lavender falling due in 1874, and asking to enforce a lien on the property for its payment. At the same time Tingley filed his answer and cross-petition, in which he claimed an interest in the note due in 1874, and prayed affirmative relief in his own behalf. On the third of March, 1881, Lavender, Phillpot, Cantlon, and Mrs. Gregory, with leave of the court, filed a reply to the answer and cross-petition of Parshall. On the twenty-third of March, 1882, leave was granted Tingley to amend his pleadings, and to Mrs. Gregory to file an amended answer in 30 days. Mrs. Gregory did file her amended answer to the cross-petition of Hartley on the seventeenth of April, 1882, and, on the ifteenth of June thereafter, the Gregorys, Lavender, Cantlon, Phillpot, and Kellogg presented their petition for the removal of the cause to the circuit court of the United States. That petition, so far as it is material to the question now under consideration, is as follows:
"Your petitioners now show to this court that the plaintiff herein, Milo F. Kellogg, is a citizen of the state of Missouri: defendant Thos. J. Cantlon is a citizen of the state of Colorado;#defendant Rorille F. Parshall is a citizen of the state of Wisconsin; defendant J. W. Hartley is a citizen of the state of Ohio; and that defendants E. Mary Gregory, James E. Phillpot, J. S. Gregory, and Luke Lavender are citizens of the state of Nebraska; and that said Thos. J. Cantlon and Reville E. Parshall were non-residents of the state of Nebraska at the commencement of this action. That none of the other defendants in said cause have made any appearance or set up any claims of interest in the cause or controversy, and that the defendants named herein are the only ones appearing to have any interest therein. Your petitioners further represent
that no final hearing or trial of said cause has been had, but said cause is now pending for trial in this court.”
Upon the presentation of this petition the district court refused to surrender its jurisdiction, and the petitioners excepted. On the eleventh of November, 1882, a decree was entered sustaining the several claims of Hartley and Tingley, and establishing liens in their favor on the property in dispute. From this decree the Gregorys, Phillpot, Cantion and Lavender appealed to the supreme court of the state, and assigned for error the refusal of the district court to surrender its jurisdiction on the presentation of the petition for removal. The supreme court sustained the action of the district court, and to review that decision this writ of error was brought.
To our minds it is very clear that there was no error in the rulings of the courts below upon the federal question involved, which alone can be considered by us. The district court was not bound to surrender its jurisdiction until a case was made which on the face of the record showed that the petitioners were in law entitled to a removal. The mere filing of a petition is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has, under the statute, the right to take the suit to another tribunal Railroad Co. v. Koontz, 104 U. S. 14.
The act of 1875, c. 137, (18 St. 470.) which governs this case, provides that the petition for removal must be filed at or before the term at which the cause could be first*tried, and before the trial. This has been construed to mean the first term at which the cause is in law triable,—the first term in which the cause would stand for trial if the parties had taken the usual steps as to pleadings and other preparations. Babbitt v. Clark, 103 U. S. 606; Pullman Palace Car Co. v. Speck, 113 U. S. 87; S. C., ante, 374. It has also been decided that there cannot be a removal after a hearing on a demurrer to a complaint because it does not state facts sufficient to constitute a cause of action. Alley v. Nott, 111 U. S. 472; S. C. 4 SUP. Ct. REP. 495; Scharff v. Levy, 112 U. S. 711; $. C.,ante, 360. Either one of these rules is fatal to the present case. If we treat the suit as originally one to enforce the liens of Hartley and Tingley upon the property as security for the payment of the amounts due them respectively, it was begun when their respective answers and cross-petitions claiming affirmative relief were filed, and this was cer. tainly not later than December 13, 1880, or a year and a half before the peti. tion for removal was presented. Five terms of the court had passed, at either one of which the case would have been triable if the parties had taken the usual steps as to pleadings and preparations. In fact, more than a year had elapsed from the time the issues had actually been made up on the pleadings of some of the parties.
Then, again, the answers and cross-petitions of the claimants of these sev. eral liens are to be treated as their petitions for relief upon their respective causes of action. The answer and cross-petition of Hartley, the original answer of Tingley, and the original answer and cross-petition of Parshall, were all demurred to on the seventeenth of May, 1880, and the demurrers overruled, nearly two years before the petition for removal was filed. After the hearing on the demurrers it was too late, under our decisions, to ask for a removal.
Without considering any of the other objections to the removal which might be urged, the judgment is afirmed.
(114 U. S. 57)
PUTNAM and another 0. INGRAHAM.
(March 23, 1885.) 1. REMOVAL OF CAUSE--Joint ACTION-SEPAZATE DEFENSES.
A separate controversy is not introduced into a case by separate defenses to the
same cause of action. Louisville & N. R. Co. v. Ide, ante, 735. 2. SAME-DEFAULT OF ONE OF SEVERAL JOINT DEFENDANTS.
The default of one of several joint defendants does not prejudice the plaintiff in his right, in case he sustains the allegations of his complaint, to a joint judgment against all the defendants. In Error to the Circuit Court of the United States for the District of Connecticut.
1. E. Dickson, for plaintiffs in error. Chas. E.Perkins, for defendant in
WAITE, C. J. This is a writ of error for the review of an order of the circuit court remanding a suit to a state court. The suit was brought in the superior court of the county of Hartford, Connecticut, by George E. Ingraham, the defendant in error, a citizen of Connecticut, against N. D. Putnam and Henry Earle, citizens of New York, and W. G. Morgan, a citizen of Connecticut, as partners in business under the name of Putnam, Earle & Co., to recover a balance claimed to be due from the partnership on an account for money lent, paid out, and expended, and upon a note of $5,000 made by W. G. Morgan to the order of Putnam, Earle & Co., and by the firm indorsed to Ingraham. The complaint contained simply the common counts, but a bill of particulars subsequently filed disclosed the true nature of the claim to be the note, and an account for the purchase and sale of stocks beginning August 17, 1883, and ending February 29, 1884.
The defendants Putnam and Earle filed a separate answer, which contained (1) a general denial of all the allegations in the complaint; (2) an averment as to the account that the alleged loans were all made to thé de fendant Morgan for his individual and private use, and not to the firm; (3) an averment as to the note that it was given for money loaned to W..G. Morgan alone for his individual use, and not to the firm, and that it was indorsed by Morgan in the name of the firm by collusion between him and In am, and with intent to defraud Putnam and Earle; and (4) a statement that the partnership of Putnam, Earle & Co. was not formed until January 2, 1884, and that all the transactions in the bill of particulars before that date took place, if at all, between the plaintiff and William G. Morgan, who, during the years 1882 and 1883, was only the agent of Putnam and Earle, and not a partner with them, and that as to none of the items in the bill, dated in the year 1883, were they under any joint liability with Morgan as partners.
Morgan has never answered the complaint, and as to hin the case stands on default. After filing their answer the defendants Putnam and Earle presented a petition to the superior court for the removal of the suit to the circuit court of the United States for the district of Connecticut. The material part of this petition, aside from a statement of the citizenship of the parties, is as follows: “And your petitioners further say that in the suit above mentioned there is a controversy which is wholly between citizens of different states, and which can be fully determined between them, to-wit, a controversy between the present petitioners, N. D. Putnam and Henry Earle, and the said George E. Ingraham and William G. Morgan, as by the pleadings in said cause will more fully appear.” Upon the presentation of this petition the superior court declined to enter an order for the removal of the cause. Thereupon the petitioners entered a copy of the record in the circuit court of the United States. This being done, the plaintiff, Ingraham, moved that
court to remand the suit, and the motion was granted. To reverse an order to that effect this writ of error was brought.
*We are unable to distinguish this case materially from that of Louisville dei N. R. Co. v. Ide, ante, 735. The suit is brought against all the defendants jointly to recover upon what are alleged to be their joint promises and undertakings. The defendants, who are not citizens of Connecticut, have filed a separate answer in which they deny their liability altogether, and claim besides that, if liable at all on part of the account sued for, it is not jointly with the defendant Morgan. This is their separate defense to the joint suit which Ingraham has elected to bring against them and Morgan upon what he claims to be the joint contracts of all the defendants.
In Connecticut, as in New York, “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants,” and in addition to this the court may, in Connecticut, “determine the ultimate rights of the parties on each side as between themselves, and grant to the defendant any affirmative relief he may be entitled to." But this, as we have said in the case just decided, does not make a joint contract several, nor divide a joint suit into separate parts. The suit is still one and indivisible for the purposes of removal. The fact that Morgan bas not answered but is in default is unimportant. The suit is still on joint causes of action, and the plaintiff, if he sustains the allegations of his complaint at the trial, will be entitled to a joint judgment against all the defendants. The default places the parties in no different position with reference to a removal than they would occupy if Morgan had answered and set up an entirely different defense from that of the other defendants. A separate controversy is not introduced into the case by separate defenses to the same cause of action.
As the petitioning defendants have asked no affirmative relief, either against the plaintiff or their co-defendant, no question can arise under the rule of practice in Connecticut which allows the court to determine the ultimate rights of the parties on each side as between themselves. In the present case, the only controversy is as to the right of the plaintiff to recover against the defendants.
The order to remand is affirmed.
(114 U. 8. 15)
MURPHY 0. RAMSEY and others.
PRATT O. SAME.
BARLOW 0. SAME.
(March 23, 1885.) 1. UTAH COMMISSION-AUTHORITY OF COMMISSIONERS—ACT OF MARCH 22, 1882.
The board of commissioners appointed for the territory of Utah in pursuance of section 9 of the act of congress, approved March 22, 1882, entitled "An act to amend section 5352 of the Revised Statutes of the United States in reference to bigamy, and for other purposes," (22 St. 30,) have no power over the registration of voters or the conduct of elections. Their authority is limited to the appointment of registration and election officers, to the canvass of the returns made by such officers of election, and to the issue of certificates of election to the persons appearing by such canvass
to be elected. 2 SAME-DUTIES or REGISTRATION AND ELECTION OFFICERS.
The registration and election officers thus appointed are required, until other pro visions be made by the legislative assembly of the territory, to perform their datia ander the existing laws of the United States, including the act of March 22, 1882 and of the territory, so far as not inconsistent therewith.
& SAME-LIABILITY OF COMMISSIONERS.
As the board of commissioners had no lawful power to prescribe conditions of registration or of voting, any rules of that character promulgated by them to gov. ern the registration and election officers were null and void ; and as such rules could not be pleaded by the registration officers as lawful commands in justification of refusals to register persons claiming the right to be registered as voters, their ille
gality is no ground of liability against the board of commissioners. 4. SAME_Who ENTITLED TO BE REGISTERED.
The registration officers were bound to register only such persons as, being qualified under the laws previously in force, and offering to take the oath as to such qualifications prescribed by the territorial act of 1878, were also not disqualified by
the eighth section of the act of congress of March 22, 1882. 8. SAME-BIGAMIST AND POLYGAMIST EXCLUDED.
That section provides, as to males, that no polygamist, bigamist, or any person cohabiting with more than one woman; and, as to females, that no woman cohabiting with any polygamist, bigamist, or man cohabiting with more than one woman, shall be entitled to vote, and consequently no such person is entitled to be registered as a voter, and the registration officer must either require such disqualifications to be negatived by a modification of the oath, the form of which is given in the territorial act, or otherwise to satisfy himself by due inquiry that such disqualifications do not exist; but which course he is bound to adopt it is not necessary in
these cases to decide. R SAME-ACTION FOR REFUSAL TO REGISTER-PLEADING.
The plaintiffs in these actions, seeking to recover damages for being unlawfully deprived of their right to be registered as voters, must allege in their declarations, as matter of fact, that they were legally qualified voters, or, that allegation being omitted, must allege all the facts necessary to show, as matter of law, that they were qualified voters; and to this end it is necessary that they should negative all the
disqualifications pronounced by the law. 7. Sank-"BIGAMIST" POLYGAMIST" DEFINED-Ex Pos Facto LAW.
A higamist or polygamist, in the sense of the eighth section of the act of March 22, 1882, is a man who, having contracted a bigamous or polygamous marriage, and become the husband, at one time, of two or more wives, maintains that relation and Hatus at the time when he offers to be registered as a voter; and this without reference to the question whether he was at any time guilty of the offense of bigamy or polygamy, or whether any prosecution for such offense was barred by the lapse of time; neither is it necessary that he should be guilty of polygamy under the first section of the act of March 22, 1882. The eighth section of the act is not intended, and does not operate, as an additional penalty prescribed for the punishment of the offense of polygamy, but merely defines it as a disqualification of a voter. It is not, therefore, objectionable as an ex post facto law, and has no retrospective operation. The disfranchisement operates upon the existing state and condition of the person,
and not upon a past offense. & SAME-Case STATED.
It was accordingly held (1) that, as to the five defendants below, composing the board of commissioners under the ninth section of the act of March 22, 1882, the demurrers were rightly sustained, and the judgments are affirmed; (2) that in the cases in which Jesse J. Murphy and James M. Barlow, respectively, were plaintiff's
, they do not allege that they were not polygamists or bigamists at the time they offered to register, although they deny that they were at that time liable to a criminal prosecution for polygamy or bigamy, and deny that they were cohabiting with more than one woman, and, not showing themselves to be legally qualified voters, the judgments on the demurrers as to all the defendants is affirmed; (3) that in the case in which Ellen C. Clawson, with her husband, is plaintiff, as the declaration does not deny the disqualification of one who is at the time cohabiting with a polygamist or bigamist, the judgment as to all the defendants is affirmed; (4) that in the cases in which Mary An M. Pratt and Mildred E. Randall, with her husband, are the respective plaintiffs, as all the disqualifications are denied, and it is alleged that the defendants, the registration officers, willfully and maliciously refused to register them as voters, the judgments as to Hoge and Lindsay in one, and as to Hoge and Harmel Pratt in the other, are reversed, and the causes remanded for
further proceedings. Appeals from the Supreme Court of the Territory of Utah. *In these actions, five in number, Alexander Ramsey, A. S. Paddock, G. L. Godfrey, A. B. Carleton, and J. R. Pettigrew, defendants in all, were persons who composed the board appointed under section 9 of the act of congress, approved March 22, 1882, entitled “An act to amend section fifty-three