BELDING v. GAINES. BELDING (Clirouit (lourt, E. 'IJ. GAINES
817
et
aLl
n. A.'1'kanaaa.
March 1, 1887.)
COURTS-FEDERAL COURTS-CITIZENSHIP-COLLUSlVE JOINDER-P ABTITION.
Complainant, a citizen of Texas, the heir of B., sued his co-heirs, citizens of Arkansas, claiming from the first defendant, who had obtained the legal title to the ancestor's property, a one-fourth interest, and from the other two defendants, partition. The last two defendants filed a cross-bill, claiming separate ownerships of one-fourth interest, and also partition. Held that, although the interests of the last two defendants and that of complainant were the.same as against defendant who claimed the legal title, their interests were not so identical in other respects as to require their being joined as complainants; and a plea in abatement to the jurisdiction on the ground that they were Collusively made defendants to give the federal court jurisdiction, should be overruled.
In Equity. On plea in abatement to the jurisdiction. U. M. &- G· .8. Rose, for plaintiff. Jf. W. for defendants. Before BREWER and CALDWELL, JJ. BREWER, J.Thecomplainant is a citizen of Texas, the defendants ali citizens of Arkansas; prima facie, therefore, this court has jurisdiction. 'But these facts appear, and upon them a plea in abatement to the jurisdiction has been filed. One Belding died, having the equitable title to a :tract Of land in Arkansas, and leaving four heirs. One of them, a defendant herein, obtained the legal title. The complainant is one of the as against such defendant a one-fourth heirs, and files this bill interest in the property, and as against all the defendants- the other heirs being made defEmdants-partition. Such other heirs file a cross· bill, claiming their separa.te ownerships of one-fourth interest, and also asking partition. It is insisted that the interests of these two defendants are the same as those of the complainant, and that they are collusively joined as defendants for the purpose of giving this courtjuriildiction; that the court should ignore the action of the pleader, rearrange the 8tatUS of the parties litigant, and place such last-named defendants on the side of the complainant; and, so placing them, there would be a suit between citizens of this state, of which this court could not take jurisdiction. I think thiB is a mistake. It may be true that the complainant and the two defendants are alike interested in divesting the other defendant of whatever light and protection he may claim from holding the legal title, but there their identity of interest ceases. Each seeks to recover for himself, and not for the three jointly, his one-fourth share of the property. Partition implies a setting apart to each owner his hitherto undivided interest, and. each owner has a separate interest in establishing the fact and extent of his title, and in securing his separate share of the estate. Take an ordinal'y law action. There must be a unity of interest, not merely in the subject-matter of the action, but also in the relief sought. 1 Publir.ation
4elayedby failure to obtain copy of opinion at time of its delivery.
v.37F.no.15-52
818
FEDEBAL .REPORTER)
vol. 37.
before two parties can be joined as plaintiffs. Take, for illustration, a case I have just decided in the: Eastern district of Missouri (Keary v. Life Ass'n, 30 Fed. Rep. 359.) A man took out a policy in an insurance company. The policy provided fo1'the payment of $10,000 upon his death, not his heirs in bulk, separately,-$2,000 to one, $1,000 to another, and so on, specifically .naming each.' Upon his death the heirs joined as plaintiffs in a single action. I sustained a demur1'er on the ground, of misjoinder of several of action. All were interested in the subject-matter of the action.--:"the establishing the policy as a valid contract upon which the company wasliable,-but they were not jointly interested in the reliet' sought. Each had his separate cause of action for the money due him by the terms of the policy, and neither was interested in the money claimed by the others. So here the three may be interested in striking down any adverse claim which may be set up by the holding of the legal title" but neither of them is interested the recovery by the other of his one-fourth. That is a matter which concerns and benefits each claimant separately. There might, in fact, be more antagonism between the several interests of the three than between the several plaintiffs in the law action referred to. It is true, as stated in Barney v.Baltimore City, 6 Wall. 280, all part owners are so inter,ested in the partition that they should, .be made parties; but where full partition is sought each oWllerhas his separate, and individual interest to assert and protect, and that of interest enables him to maintain an action in his separate name. The fact that one party denies all part ownership 1:>.y the othe:rs, and that they therefore make cc;uumon cause to establish their claim against such denial, does not away their individuality of intereat in the partition consequent upon their success in the first matter of controversy. So far as the case.of Bland v. Fl8ernan, 29 Fed. Rep. 669, conflicts 'with the views above expressed, I do not think it should be followed. The plea in abatement will be overruled. CALDWELL, J. I co.ncur in the conclusion reached by the circllitjudge. The plaintiff was compelled to make all the heirs parties, and, according to a well-settled rule of equity pleading, he had the right to make 'them ,defendants, without regard, to the question of the attitude they occupied towards each other or the plaintiff. But it is said that the defendants in this state, whose interests halimonize with the plaintiff's, are "collusively joined' as defendants." It does not follow that, because some of the parties to the suit ha.ve COnlmon interests with the plaintiff, they jnust be made plaintiffs, or so treated for any purpose. " Ina suit by joint tenants or tenants'in cornman for a partition, all must be before the cpurt; but it is not necessary of course that aU pe pl/Lintiffs." Pom. Rem. § 254. It was a .rule ofcommon-law ,pleading that all persons having the same interest should stand on the same si¢le of the suit, but that rule never had allY application in a court of chancery. All that the rules in chancery pleading require is that all parties materially interested,in the subject of the· suit be broughton the record either as
819 pl:a.intHfs or dl:lfendants., , Story, PI. § 72; Bank v. Seron, 1·Pet.,·306. Certainly parties cannot he said to be collusively joined for the purpose of perpetrating a fraud on the jurisdiction of the court, when they are indispensable parties to the suit, (Barney v. Baltimore Oity, 6 Wall. 280,) and when by the settled rule of chancery pleading the plaintiff had an undoubted right to make them defendants, and when their bonafide citizenship, and that of the plaintiff, is such as to give the latter the right according to the very letter of the constitution and act of congress to sue them in the federal court. By no rule of law or logic can the contention be supported that the rules of chancery pleading as to parties shall be abrogated, and a; rule the converse of that which has obtained from time immemorial adopted, in order to deprive a citizen of another state from his constitutional right to sue in this court. If the defendants' contention is sound, then a plaintiff suing in a federal court must join with him as plaintiffs all persons whose interests are supposed to be like his own, whenever such joinder would have the effect to defeat the federal jurisdiction, and for that very purpose. Bya parity of reasoning, where the federal jurisdiction would exist by the plaintiff joining with him all persons having the same itlterest, he would be required to make them defendantll, if by so doing the federal jurisdiction would be ousted. But a compulsory rearrangement of the parties to a suit, rightfully brought under the act of congress and the rules of chancery pleading, with a view to oust the federal jurisdiction, is without precedent, and opposed to the doetrine and spirit of the rules on the subject of federal jurisdiction when that jurisdiction is dependent on citizenship. By equity rules 22 and '47 necessary and proper parties may be dispensed with when the effect of making them parties would be to oust the jurisdiction of the court. So far from treating as plaintiffs those who are properly made defendants unuerthe rules of chancery pleading, for the purpose of ousting the jurisdiction,they will, when not sued, not be permitted to make themselves plaintiffs, if the effect would be to oust the jurisdiction; but the court will on its own motion make them defendants in order that the jurisdiction may be maintained. On this point Mr. Justice BLATCHFORD says: ! "In to the petition presented by Wheeler, asking to be made a coplaintiff in the bill, I tl.llIk the point is dispost1d of by the rules in equity prescribed by the supreme cotllt. A. case like this one was probaLJly foreseen, and is provilJed for in theforty-sevellth and forty-eighth of the rules of practioofo1' courts of equity. "','" ... These rule:! have been aetell upon ever since they. were IIdopkd ,in reference to cases of this kind, particulltl'ly in regard to corporations wllere tbe stockholders are numerous, and reside in various places. But, indppendently of all that, it is apparent that, in this case, to make Whp",ler, who is a citizen of the state of New York, a party plaintiff, would oust thejurisdiction of the court; and under those circumstances. irrespective of the rules referrall to, the rule of pquity would be to make the person a party defendant, alld not a party plaintiff. It is not at all necessary, in order to give to WhepIer, as a stockholder in the Pacific Mail Company, the benefit of this suit. that he should be made a co-plaintiff. He may come in and contribute to the expenses of the suit, and avail himself of the benefits of it by being made a defendant." Bruwn v. /Steam-Ship Co., 5 Blatchf. 535.
·
820
FEDERAL REPORTER, vol.
37.
The case of Barney v. Baltimore Oity, 8tfpra, goes to support the jurisdiction in this case. In that case Mary Barney, a citizen of Delaware, and one of the heirs of Samuel Ohase, filed her bill in the circuit court of the United States for Maryland against the city of Baltimore and several individuals, co-heirs with her, certain of them being citizens of Maryland, and certain others, (William, Ann, and Matilda Ridgely,) citizens of the District of Oolumbia, for partition and an account of rents and profits of real estate of which it was alleged Ohase died intestate. It is obvious from the statement and the opinion in the case, that the interests of the plaintiff and the other heirs who were made defendants were identical, and that the city of Baltimore occupied in that ca,se the attitude the Gaineses do in this, and that the city was the only defendant claiming adversely to the plaintiff. The court held all the heirs of Ohase were indispensable parties to the suit, and that as three of them were citizens of the District of Columbia and could neither sue nor be sued in a federal court, the case must be dismissed. But neither the counsel nor the court intimate that the common citizenship of some of the heirs, made defendants, with the city of Baltimore, would deprive the court ofjurisdiction. On the contrary, Mr. J ustice who delivered the opinion of the court, said:" The first question which the record before us presents is, whether the circuit court of the district of Maryland, sitting as a court of chancery, could entertain jurisdiction of the case. The difficulty arises in reference to the interest of William , Ann, and Matilda Ridgely," who were theheits residing in the District of Columbia. The counsel for Gaines invokes.und attempts to npply to this .case the doctrine applicable to the removal of suits which is thus stated by the supreme conrt: "For tbe pllrposes of a removal the matter in dispute may be ascertained and the parties to the suit arranged on opposite sides of that dispute. If in such arrangement it appears that those on one side are all citizens ofdifferent states from those on the otber, the suit may be removed." Removal Cases, 100 .U. S. 457. . . ,
This doctrine is applied alone in cases brought originally in a state court, and then in aid of the federal jurisdiction, or, as expressed by the supreme court, "for the purposes of a .removal." It is to prevent Pla.intiffs from depriving defendants of the right of removal by uniting with them as defendants persons whose citizenship would prevent a and who either have 110 real interest in the suit, or whose interests a.re on the side of the plaintiff. Arapahoe Co. v· Railway Co., 4 Dill. 277; Sewing-Machine Co. (h8e, 18 Wall. 586. 'fhe doctrine has no application in the case at bar. The cross-bills filed by the Beldings are proper. Peay v.Schenck, 1 Woolw. 175. .
, BIRDSEYE t1. SHAEFFER.
821
BIRDSEYE 'V. SHAEFFER
et al.
(Circuit Court, W, D. Texas. December 20, 1888.) 1. REMOVAL OF CAUSES-ACT OF 1887-PENDING CAUSES-CONSTITUTIONAL LAW. Since the inferior federal courts owe their existence and powers enti'rely to that body has full powers over them. The provision of the act of March 3, 1887. therefore, that the circuit court shall remand a cause removed <>n the ground of local influence and prejudice when on application it has examined the affidavit and its p;rounds. and not become satisfied that the remov· ing party will not be able to obtain justice in the state court, is not, as regards' pending causes. unconstitutional. ' :2. SAME. An order settin'p; aside another order remanding a cause to the state court, from which it had been removed on the ground of local prejudice. is not a final order, and the cause remains pending. Hence the provision of the act of March 3. 1887. for an inquiry into the question of local prejudice, applied to a cause at such a stage when the act was passed. 3. SAME. An order remllJ;lding th" caUSll after suchan inquiry does not removinp; party oJhis property without due process of law, because after the order retaining the' cause he had spentrnoney in preparing for trial.' " , 4. SAME. ' The removing party is not left remediless by a remand. since the removing order did take away the state court's jurisdiction, but merely held it in abeyance while the cause was in the circuit court, and the state court is now· bound to resume it. 5. SAME. It is no .objection to the remand that the evidence taken will not be admissible in the state, court. That isa matter for the state legislature.
At Law. Motion to set aside an order remanding the cause to the state court. Action by Lucien Birdseye against F. W. Shaeffer and othets, to recover certain land. . Hancock, Shelly &: Hancock and Bethel Coopwood, for plaintiff. John A. Green, j{. O. Green, McCampbell &: Welch, and Staytan &: Kl8berg, for defendants·. MAXEY, J; This is a moHon made by the plaintiff, in which he seeks to set aside aQ order, granted at a former day of the present term,remanding the cause to the Statf! court. The suit was originally instituted by the plaintiff, a citizen of the state of New York, in the district court of Nueces county, against Shaeffer et al., citizens of Texas, to recoyerf,l. mrge and valuable tract ofland situated in Nueces county. Under the local prejudice clause of the act of 1867, (Rev. St, § 639, subd. 3,) ;filed in the state court a petition, bon,d,anda.ffidavit in the statutory form to remove the cause into this court. September 2, 1885, the judge entered an order authQrizing the removal of form: "It is the suit in by the 1:).e accepted, and Slaid bond approved, and; that this court proceed nC), further in t,his, clltlise,andthat this9,Rp,Seberellwv,ed into the 'United States circuit court in and for the Western district of