p. 61of said capital, stock, . . . and further duly notified said corporation to pay to him all dividends that might thereafter be declared and payable to and on said stock; ” but that the company refused to do so. The prayer was for a transfer of the stock, the cancellation of the certificates to the Seligmans, the issue of new certificates and payment of dividends to Wilson, and an injunction prohibiting the Seligmans from acting as stockholders.
The company and the Seligmans filed separate answers, but setting up substantially the same defence, to wit, that the stock, though standing in the name of the Seligmans, did not in fact belong to them when the execution was levied, or when the sale to Wilson was made, because they had long before that time sold and transferred their certificates to other parties, for value, who' were the real holders and owners of the stock, though not transferred to them on the books. The Seligmans in their answer denied the validity of the judgment against them for the reason that it was rendered in a suit to which they were not parties.
The petition for removal was presented by the Seligmans alone, and, after stating the citizenship of the parties, proceeded as follows: “ That there is in said suit a controversy wholly between citizens of different States, which can be fully determined as between them without the presence of the defendant, the St. Louis and San Francisco Railroad. That there is in said suit a separate controversy wholly between said plaintiff and your petitioners, citizens of different States as aforesaid, which can be fully determined as between them, and your petitioners are actually interested in such controversy. That the "controversy in said suit between plaintiff and your petitioners, as made by the pleadings, is wholly distinct and separate from that between the plaintiff and the St. Louis and San Francisco Railway Company.”
Upon this petition the State court removed the suit, but the Circuit Court of the United States remanded it. To reverse this order of the United States Court, the appeal was" taken.
Mr. James O. Broadheád for Seligmans, appellants.
p. 62Mr. James 8. Botsford for appellee.
delivered the opinion of the court. After reciting the facts as above stated, he continued:
There is but one controversy in this case, and that is asdo the duty of the railroad company to transfer to Wilson the stock standing in the name of the Seligmans on its books and to issue new certificates therefor. Upon the one side'of that controversy is the plaintiff, a citizen of Missouri, and on the other the railroad company, a Missouri corporation.- The sole purpose of the suit is to establish the duty and enforce its performance. This cannot be done without the presence of the company, for it is upon the company itself that the decree must operate. The Seligmans are made parties only in aid of the principal relief which is asked. As the stock stands in their names on the books, the company may well claim a judicial finding in the cause which shall bind them, if upon the. final hearing a transfer is ordered. The suit, therefore, is in truth and in form against both the company and the Seligmans On a single cause of action, and cannot be removed unless the separate answer of the Seligmans introduces a separate controversy. This we have held in Louisville & Nashville Railroad Co. v. Ide, just decided, is not necessarily the effect of separate issues under sep- • arate defences to the same actipn. No'relief whatever can be granted unless it is found to be the duty of the company to transfer 'the stock, and as to that controversy the company is an indispensable party. Central Railroad Company of New Jersey v. Mills, 113 U. S. 249 ; Thayer v. Life Association, 112 U. S. 71 7 .
The order remanding th,e cause is Affirmed.