concurring.
The several Acts of Congress, upon the subject of the transfer of cases from the State Courts to the Federal Courts, are to be construed in reference to the jurisdiction, of the Federal Courts under the Constitution. These Courts have no jurisdiction over' controversies between citizens of the same State.
The Act of 1789 allowed the defendant in any case, in a suit brought against him in a State Court, if he was an alien or a citizen of another State, to transfer his case. But this Act made no provision for the case of one of several defendants.
The Act of 1867 allows either the plaintiff or defendant to remove the case on complying with certain requisites. But neither does this Act provide for the case of one of several defendants or plaintiffs. And this for the plain reason that generally when a citizen of another State is either a plaintiff or defendant, joined with other plaintiffs or defendants who live in the State where the suit is pe'nding, his rights are necessarily so blended with his co-plaintiff’s or co-defendant’s rights, as that the decision of them necessarily involves the decision of a controversy between citizens 'of' the same State.
The very fact that one is a co-defendant or co-plaintiff, ordinarily involves the idea that'his rights are so blended with the rights of his co-parties on the same side, that, to do justice, they must be decided together. It sometimes, however, *does happen that one is a co-plaintiff or co-defendant, under such circumstances as that it is possible to separate his controversy from that of his fellows, so that it can be settled without their presence. It was to meet this case, a rare one, that the Act of 1866 was passed.
Is this such a case? Mrs. Anna Peters, for herself and child, applied to the Ordinary of Bibb county for a year’s support out of the effects .of her deceased husband, Mr. Peters, in the hands of Mr. Best, his administrator. Notice was given to the administrator, and commissioners were *254appointed, and they assigned to her $1800 00. When this assignment was returned to the Ordinary, Mrs. Thalia Peters^ for her two children, objected, and the Ordinary revoked the assignment.
Mrs. Anna Peters and child appealed to the Superior Court,, and the case, to-wit: Anna Peters and her child v. Best, the administrator, and Thalia Peters for her two children, is there pending*.
Mrs. T. Peters, as guardian and next friend of her children,, makes the affidavit and motion to move this appeal case to the Circuit Court. To this it was replied: 1st. That this was not such a case as one of several defendants could move. 2d. That this case had been absorbed in and was enjoined by a case in equity pending in Bibb Superior Court, to-wit: A case in favor or Thalia Peters, in her own right, filed in the life-time of Peters; but, in answer to which, Best, his administrator, had filed a cross-bill against Thalia Peters and her children, Anna Peters and her child, E. E. Brown, and various other parties, alleging that the estate could not pay all the claims, and praying that Court to settle their conflicting interests.
Were this a motion to transfer to the Circuit Court the casein eauity between Mrs. Thalia Peters and Best, the administrator, I am inclined to think, though I am not clear, that the motion ought to have been granted. The filing of the answer, including the cross-bill set up therein, in which new parties are-introduced into the controversy, and who are made defendants, but whose interests are all antagonistic to *Mrs. Thalia Peters, may not so alter the controversy which she-has with the administrator, as set forth in her'bill, as to make her other than a sole plaintiff, and such a party as, by the Act of Congress, may move his case to the Circuit Court.
But the motion, as set forth in this record, is not to move the bill, but the appeal cause from the Court of Ordinary, between Anna Peters and her child, against the administrator, Best, to which Mrs. Thalia Peters, as guardian or next friend of her children, has made herself a party. ■
That is the case described in her motion; that is the case mentioned in her affidavit, and that is the case transferred by the-order of the Court. In my judgment that case cannot be transferred. The controversy there, is in fact, between Anna Peters and the administrator.
If it were to be transferred without the administrator, who is the principal defendant, the United States Court could give no judgment in the case at all. Thalia Peters only appears in it in the administrator’s behalf. The only judgment of the Court that can be had in favor of the plaintiff, is a judgment against, not Mrs. Thalia' Peters, but against the administrator, and without his presence as a partv, the rights of neither Anna Peters and her child, nor Mrs. Thalia Peters *255and her children can be determined, since the fund or property, in reference to which they are disputing, is legally un* der the control of the administrator, and may not in fact, belong to either of them, but be wholly absorbed in the settlement of other claims. This is so plain that it is not even pretended, as I understand, by our Brother Warner, that the appeal cause can be removed by itself. It is concluded by him that the motion to move the proceeding to obtain a year’s support, carries with it the bill, cross-bill and the whole controversy, because the cross-bill sets up this very suit, prays equitable conveyance of it and absorbs it.
I am inclined to think, that a motion to move the bill, would ■carry this case, because as the bill now stands, this case is included in and has been absorbed by it. But I am not able to see how a motion to move this case includes the bill. In tbe bill, Mrs. Thalia Peters is the sole plaintiff, and the issues *of the bill are various, including, not only the controversy with Mrs. Anna Peters, which is this case, but controversies with various other persons, all of whom named, have a right to be heard, and would be entitled'to notice.
Take for instance, the Lunatic Asylum. You transfer a case, to which that Asylum is a party, to the United States Court, by •a motion made in another case to which it is not a party, of which it has no notice. It seems to me absurd to say, that a motion in a case at law, to-wit: An appeal from the Ordinary, can carry with it a bill in equity, merely because that bill includes in it, with other and distinct controversies, the appeal cause. On the filing of the cross-bill, this appeal case, this controversy about the year’s support, was transferred to the equitable side of the Court, became one of the issues involved in the bill, and can only be got at, by a motion made on the equity side of the Court, in that case. It is only in that way, that the parties to the bill •can get notice of the motion.
In the shape in which this motion is made, if it is to' affect the bill and the parties to it, you undertake to affect the rights of parties without notice to them. By moving in a case in which they are not parties, you cannot transfer to the Circuit Court a ■suit in which they are parties.
It is upon this ground I place my concurrence. It is clear to me that the appeal from the Ordinary cannot be transferred to the United States Court,’ for the simple reason that in the appeal case, Mrs. Thalia Peters is only one of two defendants, and ■neither her rights nor the rights of Mrs. Anna Peters can be settled without the presence of the administrator, against whom alone any judgment can be rendered.
The motion being, as I understand it, to move that case, and that case only, and not the bill, ought to have been refused.