To these answers the plaintiffs replied, and on the twenty-second of November the intervenors presented to the district court their petition for the removal of the suit to the circuit court of the United States, in which they state that the plaintiffs and the defendant Larson were citizens of Minnesota, and the intervenors and petitioners citizens of Illinois, and—
'(5) That such taking, detention, and ultimate sale * * * were all done by said Jacob Larson in his official capacity as such sheriff, and at the request of your petitioners, and by virtue of a writ of execution duly allowed and issued out of the district court of the Tenth judicial district of the state of Minnesota, for the county of Freeborn, in an action therein pending in that court between said petitioner, the Thorn Wire Hedge Company, as plaintiff, and one George A. Patrick as defendant, and under indemnity furnished by said Thorn Wire Hedge Company, with said petitioners, J. W. Calkins, Aaron K. Stiles, and Gary G. Calkins, as bondsmen and sureties therein to such sheriff, pursuant to the statute in such case made and provided, and to save him harmless from all damages and costs for and on account of so doing; and accordingly said sheriff has duly notified said petitioners to defend this said action, and accordingly said petitioners, pursuant to the statute in such case made and provided, have duly intervened in said action as parties defendant thereto, and have duly made and filed in said action their pleading as such intervening parties defendant.
'(6) That, in virtue of said facts, said defendant Jacob Larson was at all such times and in all said matters, so far as said plaintiffs are concerned, the mere agent of said petitioners provided for them by law in such cases, and there can be a final determination of the controversy in said action, so far as concerns said petitioners, without the presence of such agent, said defendant Jacob Larson, and in fact the real controversy in said action is wholly between said plaintiffs on the one side and said petitioners on the other side, and the same can be fully determined as between them.
'(7) That your petitioners have reason to believe, and do believe, that, from prejudice as well as from local influence, they will not be able to obtain justice in said action in said state court.
'Wherefore said petitioners pray that said action by removed into the United States circuit court to be held within and for the district of Minnesota, and herewith present the bond and surety as in such cases required.'
Upon this petition an order of removal was made and the suit entered in the circuit court, December 11, 1886; and on the twenty-first of the same month it was remanded on motion of Fuller and Patrick. To reverse that order this writ of error was brought.
C. D. Kerr, for plaintiff in error.
[Argument of Counsel from pages 538-540 intentionally omitted]
Thos. Wilson, for defendant in error.
WAITE, C. J.
We have been referred by the parties to the following sections of chapter 66 of the General Statutes (1878) of Minnesota as authority for the intervention of the execution creditor, and his sureties in the action: 'Sec. 131. Intervention. Any person who has an interest in the matter at litigai on, in the success of either of the parties to the action, or against either or both, may become a party to any action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, or either of them, either before or after issue has been joined in the cause, and before the trial commences. The court shall determine the issues made by the intervention at the same time that the issue in the main action is decided, and the intervenor has no right to delay; and, if the claim of the intervenor is not sustained, he shall pay all the costs of the intervention. The intervention shall be by complaint, which must set forth the facts on which the intervention rests; and all the pleadings therein shall be governed by the same principles and rules as obtain in other pleadings. But, if such complaint is filed during term, the court shall direct a time in which an answer shall be filed thereto.'