stockholders on an excuse for such failure, the corporation is to be treated as upon the same side of the controversy as the complainant.42 Where the controversy for the control of the corporation transcends the rivalry of those claiming to be members of its board of control and the corporation itself is a mere instrumentality or holder of the title, it is properly made a party defendant and should not be aligned as a plaintiff merely because the plaintiffs belong to the faction that claims the power to appoint the members of the board.43 In such a case, it has been held that trustees of the corporation, although in sympathy with the complainant, should be aligned with the defendants.44 In a stockholders' suit to recover assets of a corporation it was held that a statutory receiver who had been made a defendant was on the plaintiff's side of the controversy.45 In an action for damages under the Kansas statute, because the plaintiff's cattle caught Texas fever from cattle driven into the State in violation of the law, where the importer of the Texan cattle and those to whom he had sold the same under a contract, whereby they assumed his liability to the plaintiff, were joined as defendants; it was held, that the importer's interest was not so adverse to that of his vendees as to justify his classification as a plaintiff, and thereby give such vendees a right of removal on the ground of diverse citizenship.46 § 42. Formal parties to the controversy. The citizenship of formal parties, with no real interest in the controversy, does not affect the jurisdiction.1 42 Waller v. Coler, 125 Fed. 821; Groel v. United El. Co., 132 Fed. 252. These cases were decided before Doctor v. Harrington, 196 U. S. 579, 49 L. ed. 606. A similar ruling has been made since this decision. Gage v. Riverside Trust Co., 156 Fed. 1002, 1007. 43 Helm v. Zarecor, 222 U. S. 32, 56 L. ed. 77. But see Stephens v. Smartt, 172 Fed. 466. 44 Kelly v. Dolan, 218 Fed. 966. 45 Sharpe v. Bonham, 224 U. S. 241, 16 L. ed. 747. 46 Woodrum v. Clay, 33 Fed. 897. § 42. 1 Wormley v. Wormley, 8 Wheaton, '421, 5 L. ed. 651; Wood v. Davis, 18 How. 467, 15 L. ed. 460; Removal Cases, 100 U. S. 457, 25 L. ed. 593; Barney v. Latham, 103 U. S. 205, 26 L. ed. 514; Harter v. Kernochan, 103 U. S. 562, 26 L. ed; 411; Corbin v. Van Brunt, 105 U. S. 576, 26 L. ed. 1176; Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822; Hervey v. Illinois Midland Ry. Co., Fed. Cas. No. 6,434 (7 Biss. 103); Girardey v. Moore, Fed. Cas. No. 5,462 (3 Woods, 397); Edgerton v. Gilpin, Fed. Cas. No. 4,280 Such are parties holding the naked legal title, with no actual interest or control over the subject-matter of the litigation, when all the equitable interests are therein represented.2 Plaintiff and another contracted as partners to do certain work in the construction of a railroad as subcontractors. By a contract between themselves, previously made and known to the principal contractor, it was agreed: that plaintiff should furnish the materials and do the work and receive and disburse the money received therefor, accounting to his associate only for a share of the net profits of the contract after the completion of the work. Plaintiff brought suit in a Federal court to enforce a mechanic's lien, filed in the name of the partnership, for the balance due under the contract, alleging such facts in his bill and that no net profits were earned under the contract. It was held that it was competent for plaintiff to allege, for jurisdictional purposes, the contract between him and his nominal partner; and that under such agreement the citizenship of such partner did not affect the jurisdiction of the court, since he had no interest in the recovery and was neither an indis-' : (3 Woods, 277); Taylor v. Rockefeller, Fed. Cas. No. 13,802; Chicago, St. L. & N. O. R. Co. v. McComb, Fed. Cas. No. 2,670 (17 Blatchf. 371); Foss v. First Nat. Bank, 3 Fed. 185, 1 McCrary, 474; Deford v. Mehaffy, 14 Fed. 181; Taylor v. Holmes, 14 Fed. 498; Bates v. New Orleans, B. R. & V. R. Co., 16 Fed. 294; Gudger v. Western N. C. R. Co., 21 Fed. 81; Sioux City, & D. M. Ry Co. v. Chicago, M. & St. P. Ry. Co., 27 Fed. 770; New Chester Water Co. v. Holly Mfg. Co., C. C. A., 53 Fed. 19, 26; Carver v. JarvisConklin Mortgage Trust Co., 73 Fed. 9; Garrard v. Silver Peak Mines, 76; Fed. 1; Title Guarantee & Trust Co. v. Studebaker, 100 Fed. 358; Wirgman v. Persons, C. C. A., 126 Fed. 449; affirming decree Persons v. Beling, 116 Fed. 877; Steiner v. Mathewson, 77 Ga. 657; Withers v. John Hopkins Place Sav. Bank Georgia, 30 S. E. 766; Harper v. Gaitheman (Kentucky), 1 Ky. Law. Rep. 419; Danvers Sav, Bank v. Thompson, 133 Mass. 182; Calloway v. Ore Knob Copper Co., 74 N. C. 200; Hadley v. Dunlap, 10. Ohio St. 1; Smith v. Baltimore & O. R. Co., 7 Ohio Dec. 542. 2 Boon v. Chiles, 8 Pet. 532, 8 L. ed. 1034; Banigan v. City of Worcester, 30 Fed. 392; Lawrence "v. Southern Pac Co., 165 Fed. 241; Atchison, T. & S. F. Ry Co. v. Phillips, C. C. A., 176 Fed. 663, holding that in an action by a widow under the California statute to recover damages for the death of her husband, the other heirs of the deceased, who are not entitled to share in the recovery, are necessary, but merely formal, parties. But see Dunn v. Waggoner, 11 Tenn. (3 Yerg.), 59. pensable nor a necessary party. The husband of a married woman when made a party to a suit affecting her separate estate is such a formal party. In a suit in which it appears by the record that a party sues for the use of another, such plaintiff is a nominal party. It has been held, that the following plaintiffs are formal parties, whose citizenship will not affect the jurisdiction, the status of the person interested in the recovery being alone considered: a State officer who sues to collect a penalty for the benefit of the State; the nominal payee of a bond suing for the use of another, who is entitled to the benefit of the same, such as the United States in a suit upon the bond of a receiver; 7 the State in a suit upon the bond of a public officer, or of an administrator; or upon the bond of an attaching creditor; 10 the governor of a State in a suit upon a sheriff's bond,11 or a forthcoming bond; 12 a marshal in a suit upon an attachment bond; 13 and, it has been said, a State in any suit brought in its name on the relation of another; 14 3 Ban v. Columbia Southern Ry. Co., 117 Fed. 21, 54 C. C. A. 407; reversing 109 Fed. 499. 4 Wormley v. Wormley, 8 Wheat. 421, 5 L. ed. 651; First Nat. Bank v. Bridgeport Tr. Co., 117 Fed. 969. 5 Browne v. Strode, 5 Cranch, 303, 3 L. ed. 108; Dimmock v. Doolittle, 29 Fed. 545; New Chester Water Co., v. Holly Mfg. Co., 53 Fed. 19, 3 C. C. A. 399, 3 U. S. App. 264; affirming 48 Fed. 879. And cases cited infra. 6 Ferguson v. Ross, 3 L.R.A. 322, 38 Fed. 161. As to when the State may be a formal party see Ex parte Nebraska, 209 U. S. 436, 52 L. ed. 876. Certain State statutes required railroads to post on blackboards erected in telegraph passenger stations the time of the arrival of passenger trains, stating whether the same were late, and, if so how much; and provided a penalty for a violation of this requirement, to be recovered in the name of the State by the prosecuting attorney for the benefit of himself and the county school fund. It was held: that an action by the State, under such action, was not removable to the Federal court for diversity of citizenship, on the ground that the prosecuting attorney and the county receiving the penalty, if recovered, were the real parties in interest. Southern Ry. Co. V. State (Indiana), 72 N. E. 174. 7. S. v. Douglas, 113 S. C. 190, 18 S. E. 202. 8 Indiana ex rel. Stanton v. Glover, 155 U. S. 513, 39 L. ed. 243. 9 Maryland v. Baldwin, 112 U. S. 490, 28 L. ed. 822. but not, it has been held, the United States in a suit brought for the benefit of a material man upon a contractor's bond.15 So, it has been held, are: an agent,16 or attorney, 17 or officer, 18 or director,19 of a corporation, when made defendant in a suit against it seeking no relief against him even when in the con 823, 824. See Missouri v. Alt, 73 Fed. 302. Contra, State of Ohio v. Columbus & Xenia R. Co., 48 Fed. 626, an application for a mandamus; Title Guaranty & Surety Co. v. State of Idaho for the use of Allen, 240 U. S. 136. 15 U. S. Fidelity & G'y Co. v. U. S. for the benefit of Kenyon, 204 U. S. 349, 51 L. ed. 516; affirming U. S. v. Churchyard, 132 Fed. 82; U. S. v. Henderlong, 102 Fed. 2; U. S. v. Sheridan, 119 Fed. 236; U. S. v. O'Brien, 120 Fed. 446, 448; U. S. v. Barrett, 135 Fed. 189; Burrell v. U. S., C. C. A., 147 Fed. 44, 46. In a suit by three heirs, who were citizens of Tennessee, against the executor, who was a citizen of Missouri, in which the administrator of a deceased heir, who was also a citizen of Missouri, was joined as defendant to secure a construction of the will, the plaintiffs claiming either that it did not dispose of the residuary estate, or that the executor was given such estate in trust for the heirs, and the executor claiming that the residuary estate was given to him absolutely; the administrator must be classed as a plaintiff in aligning the parties for the purpose of determining jurisdiction, and therefore one of the parties plaintiff was a citizen of the same state as the defendant, and the District Court was without jurisdiction. Though the interest of the administrator was like that of the other plaintiffs, so that he was a proper party, his interest was severable from theirs, and he was not a necessary party, and therefore need not have been joined under equity rule 39 providing that where a proper, but not necessary, party could not be brought in without ousting the jurisdiction of the trial court, that court may in its discretion proceed in his absence, the decree to be without prejudice to his rights, which rule was merely declaratory of the prior practice. Thomas v. Ander son. 16 Wood v. Davis, 18 Howe, 467, 15 L. ed. 460; City of New York v. New Jersey Steamboat Transp. Co., 24 Fed. 817; Brown v. Murray Nelson & Co., 43 Fed. 614; Overman Wheel Co. v. Pope Mfg. Co., 46 Fed. 577; Sidway v. Missouri Land & Live Stock Co., 116 Fed. 381; Carothers v. McKinley Mining & Smelting Co., 122 Fed. 305. 17 Brown v. Murray Nelson & Co., 43 Fed. 614. 18 Hatch v. Chicago R. I. & P. R. Co., Fed. Cas. No. 6,204 (6 Blatchf. 105); Pond v. Sibley, 7 Fed. 129, 19 Blatchf. 189; National Bank of Lyndon v. Wells River Mfg. Co., 7 Fed. 750; City of New York V. New Jersey Steamboat Transp. Co., 24 Fed. 817; Lamm v. Parrott Silver & Copper Co., 111 Fed. 241. troversy they sympathize with the complainant,20 public officers against whom no relief is sought, except an injunction against their official action in aid of an act of another defendant, which the bill also seeks to enjoin.21 Where one, acting as agent only, made insurance in his own name, and for all others concerned, although he and the underwriter were citizens of the same State; it was held, that the underwriter might be sued in those courts by the principal, who was a citizen of a different State.22 But when the insured had been paid part of the loss and joined with the insurer to recover damage for negligence which caused the fire, it was held that the insurer was not a formal party and that its citizenship must be considered in determining the jurisdiction.23 The directors are not nominal parties to a suit against them and their corporation, to cancel stock subscriptions and to compel them, individually, as well as the corporation, to refund the amounts already paid by the subscribers; nor where they are charged with actual participation in a fraud.25 24 It was held that the following are formal parties: State and county officers in a suit to enjoin them from levying, collecting and disbursing the taxes required to pay certain bonds, when the bill also sought the declaration that the bonds be declared void and their collection enjoined, making bondholders parties defendant; 26 a register of deeds in a suit to set aside certain land contracts with a prayer for an injunction against his recording the same; 27 an officer appointed to sell land under a decree, when made defendant in a suit to set aside that decree 20 Sharpe v. Bonham, 224 U. S. 241, 56 L. ed. 747; overruling Stewart v. Mitchell, 172 Fed. 905; Stephens v. Smartt, 172 Fed. 466. See Helm v. Zarecor, 222 U. S. 32, 56 L. ed. 77. 21 So held, of a sheriff and commissioners of appraisal, who were made defendants to a suit to enjoin a corporation from prosecuting condemnation proceedings. Sioux City & D. M. Ry Co. v. Chi cago, M. & St. P. Ry. Co., 27 Fed. 770. 22 Ruan v. Gardner, Fed. Cas. No. 12,100 (1 Wash. C. C. 145). 28 Turk v. Illinois Cent. R. Co., C. C. A., 218 Fed. 315. 24 Seddon v. Virginia, T. & C. S. & I. Co., 36 Fed. 6, 1 L.R.A. 108. 25 Fox v. Mackay, 60 Fed. 4. 26 Aroma Tp. v. Auditor of Pub die Accounts, 2 Fed. 33. 27 Hyde v. Victoria Land Co., 125 Fed. 970. |