Peper v. Fordyce

after stating the case, delivered the opinion of the court.

The first objection now made to the decree is, that the Cir-. cuit. Court had no jurisdiction, either of the suit originally begun in that court, or of that removed from the State court. If the jurisdiction does not appeal’ on the face of the record in some form, the decree is erroneous and must be reversed. That was decided' at the present term in Continental Life Ins. Co. v. Rhoads, ante, 237, to which reference is made fqr the authorities.

The jurisdiction in this case depends alone on the citizenship of the parties; and in the suits as originally begun, and on their consolidation in the Circuit Court, Latta, one of the defendants, is, and was at the commencement of the actions, a citizen of the same State with the plaintiffs. This is fatal to the juris-, diction, because Latta was an indispensable party adverse in. interest to the plaintiffs, and there was no separable controversy between the plaintiffs and Peper which would authorize the removal of the suit begun in the State court on that account. This was expressly decided in Thayer v. Life Association of America, 112 U. S. 717, a case which cannot be dis- • tinguished from this. It follows, therefore, that the decree must be reversed.

It only remains to consider the question of costs; for in Mansfield, Coldwater & Lake Michigan Railway Co. v. Swann, *472 111 U. S. 379, and Hancock v. Holbrook, 112 U. S. 229, it was held that, upon a reversal for want of jurisdiction in the Cir- . cuit Court, this court may make snob order in respect to the oosts of the appeal as justice and right shall seerq, to require. ' Here, the error is attributable equally to both the parties. For-dyce sued originally in the Circuit Court, when, upon the face of his bill, it appeared there was no jurisdiction.' Without discontinuing that suit he sued again in the. State court upon what was substantially the same cause of action, and to obtain substantially the same relief. This suit Peper and Latta caused to be removed to the Circuit Court, and in their petition set .forth a state of facts which showed that the case was not removable. The cause was then entered in the Circuit Court, and an answer and a cross-bill filed by Peper and Latta without any attempt on the part of Pordyce or Moore to have the suit remanded, and without even calling the attention of the-court to the question of-jurisdiction. On the contrary, after the. answer and before the cross-bill, Fordyce moved for and obtained an order that the two cases — that which he had brought in the Circuit Court of the United States and that which Peper and Latta had removed there — be heard as one under the title of his own suit in that court. The cases then proceeded, without objection by either party, until after a final decree below and an appeal by Peper and Latta to this court. Under these circumstances, we order that the costs of this court be divided equally between the parties, each paying half..

The deoree of the Circuit Court is reversed for want of jurisdiction m the Circuit Court, and the ccmse remanded, with instructions to dismiss the bill filed originally in that court by Fardyce agWinst Peper and Latta, without prejudice, and to remand the suit removed from, the State Court, each pa/rty to pay his own costs, in the Circuit Court.