US SUPREME COURT DECISIONS

1. Where the record shows that a suit brought in a state court was, on the petition of the defendant and by reason of the character of the parties, duly removed to the proper circuit court of the United States, the jurisdiction of the latter court is not lost for want of an averment of citizenship in the bill of complaint originally filed or in the amendments thereto, which were made in the circuit court.

2. The bill in this case prayed for a dissolution of the partnership between the parties and a sale of certain lands by them held as tenants in common, which, it was alleged, were not susceptible of division without prejudice to them. There was no demurrer to the bill, nor did the answer raise any objection to the jurisdiction.

Held:

1. That as the allegations of the bill touching the lands conform to the provision of the Code of California and are sustained by the proofs, the decree below awarding partition was proper.

2. That if there is anything in the allegations which concern the partnership which introduces another matter, the objection should have been taken by demurrer for multifariousness.

This action was commenced by the complainant, who is a citizen of California, in the District Court of the Fifth Judicial District for the County of San Joaquin in that state, but, upon the petition of the defendants, who are citizens of France, the cause was removed to the Circuit Court of the United States for the District of California. After such removal, the complainant filed an amended bill wherein he charged that about July, 1874, he and the defendants entered into a copartnership for carrying on a hotel business on the land known as the Calaveras Big Trees, which consisted of two tracts, one chanrobles.com-red

Page 95 U. S. 402

containing about eight hundred, and the other about seven hundred and twenty acres; that the hotel was on one of the tracts; that at the time of the formation of the partnership and during its continuance, he and the defendants owned the land as tenants in common, he having one undivided half, one of the defendants three-eighths, and the other one-eighth thereof; that it was agreed to use, as capital stock in said business, said land, hotel &c.; that he was to have the sole and exclusive management of the business; that he performed his agreement, but that the defendants so conducted themselves in and about the management of the business as to cause great loss to him and lessen the value of said land and hotel. He further alleged that the situation of the land and its connection with the hotel were such that it could not be divided without great prejudice to the owners.

The bill did not allege that the partnership was for any specified time or that there were debts, profits, or claims to adjust or accounts to settle. It prayed for the appointment of a receiver, the dissolution of the partnership, the winding up of its affairs, and a sale of the property.

The answer admitted the partnership and the ownership of the land as charged, but denied that the complainant was to have exclusive management of the business and that he performed his agreement. It also denied that they in any way misconducted themselves and that the land could not be divided without prejudice.

The land in question is that upon which grow the mammoth trees of California. It consists of two different tracts, about six miles apart. One, called the "Calaveras Big Tree Grove," is also known as the "Mammoth Grove," and the other as the "South Park Grove." The hotel is on the former tract, and the neighborhood is resorted to for the purpose of seeing the trees and enjoying the climate and the hunting and fishing.

The evidence chiefly related to the situation and character of the property and the purposes for which it could be used and to the question as to whether the place would support two hotels.

Upon the hearing, the court decreed the dissolution of the partnership, the sale of the property, and the division of chanrobles.com-red

Page 95 U. S. 403

the proceeds between the parties, in proportion to their respective interests.

The defendants thereupon appealed to this Court, and assign for error:

1. That the bill shows no equity, and should be dismissed.

2. That the sale of the real property should not have been ordered, because it was not partnership property, and, as there were no debts to pay or claims to adjust, no useful purpose could be subserved by a sale.

3. That the amended bill filed in the circuit court did not show jurisdiction in that court.