Edward Douglass White

“ We observe, however, that, under the case made, as the bank was not an indispensable party to the suit of Weldon to foreclose, the mere fact that the bank was by him joined as a defendant along with Fritzlen cannot be held to operate to prevent the application of the rule of separable controversy, and that, from its application, we think it quite clear that the validity of the bank's mortgage, assailed as it was under the circumstances of the case, was a separable controversy, with Weldon and Fritzlen on one side and the bank on the other, and it was therefore rightly the subject of removal. ”

“ It is unnecessary to detail the further proceedings in the trial court. It is adequate to say that the issues between the parties were tried in part by a jury and in part by the court, and resulted in a judgment allowing in part the claim of Fritzlen against the bank, and the remainder of the claim of the bank against Fritzlen, and, while giving a judgment in favor of Weldon against Fritzlen, rejected the claim of Weldon as to the entire illegality of the mortgage to the bank. ”

“ On July 30 Weldon applied for a temporary injunction, preventing the defendants, pending the suit, from removing any of the property beyond the jurisdiction of the court, and a restraining order was allowed. On August 13, 1903, the bank demurred to the petition, because facts adequate to establish that the mortgage by it held was invalid were not averred, and because two distinct causes of action were unlawfully joined,-the one to enforce the alleged mortgage against the Fritzlens, and the other assailing the rights of the bank. ”