136 F.2d 644 (8th Cir. 1943), 12435, Thomson v. Butler

Docket Nº:12435.
Citation:136 F.2d 644
Party Name:THOMSON et al. v. BUTLER et al.
Case Date:June 09, 1943
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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136 F.2d 644 (8th Cir. 1943)

THOMSON et al.


BUTLER et al.

No. 12435.

United States Court of Appeals, Eighth Circuit.

June 9, 1943

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[Copyrighted Material Omitted]

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W. H. H. Piatt, of Kansas City, Mo., for appellants.

Charles E. Whittaker, of Kansas City, Mo. (W. T. Bellamy, Perry G. Storts, and Homer E. Rich, all of Marshall, Mo., and Watson, Ess, Groner, Barnett & Whittaker, of Kansas City, Mo., on the brief), for appellees.

Before GARDNER, JOHNSEN, and RIDDICK, Circuit Judges.

JOHNSEN, Circuit Judge.

Plaintiffs, who were some of the heirs of law of Laura E. Saltonstall, deceased, brought suit in federal court to annul a judgment of a state circuit court of Missouri, which upheld the validity of a will of the decedent, 1 and to enjoin the devisees and legatees from claiming any part of the estate under such will and judgment.

Federal jurisdiction was claimed to exist upon two separate grounds: (1) That there was diversity of citizenship, and (2) that the suit was in any event one arising under the Constitution of the United States. 2 The substance of the constitutional ground alleged was that the state court judgment operated to deprive plaintiffs of their inheritance rights in the decedent's estate without due process of law, in that (a) the will was a forgery and its probate had been obtained by perjured testimony and other fraud perpetrated by the devisees and legatees upon the state court, and (b) that none of the present plaintiffs had been served with summons or other valid process in the will-contest proceeding, or had any notice thereof, so as to give them their day in court. 3

The trial court held that neither the necessary diversity of citizenship nor a federal question was present, and, on motion of defendants, the suit was dismissed for lack of jurisdiction.

The trial court properly held that the necessary diversity of citizenship was lacking to give a federal court jurisdiction on that ground. Frank Bush, one of the legatees under the will, was a resident of the same state as some of the plaintiffs. Plaintiffs apparently had sought to escape this difficulty by not making him a party to the suit. Under the law of Missouri, however, all devisees and legatees are necessary parties to a will contest. Eddie v. Parke's Executor, 31 Mo. 513; Wells v. Wells, 144 Mo. 198, 45 S.W. 1095; Parke v. Smith, Mo.Sup., 211 S.W. 62; Harper v. Hudgings, Mo.Sup., 211 S.W. 63. On the same ground they equally are necessary parties to any suit in equity to annul a

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judgment by which the validity of a will has been established.

When the defect in necessary parties was pointed out to the trial court, it gave plaintiffs leave to bring in all the devisees and legatees who had not originally been made defendants. Frank Bush thereafter entered his voluntary appearance as a defendant, and plaintiffs admitted that he was a resident of the same state as some of the plaintiffs. Since all of the parties on one side of the controversy were not citizens of different states from all of the parties on the other side, the court necessarily was obliged to hold that it had no jurisdiction of the suit on the basis of diversity of citizenship. City of Indianapolis v. Chase National Bank of City of New York, 314 U.S. 63, 69, 62 S.Ct. 15, 17, 86 L.Ed. 47; Treinies v. Sunshine Mining Co., 308 U.S. 66, 71, 60 S.Ct. 44, 84 L.Ed. 85; DeHanas v. Cortez-King Brand Mines Co., 8 Cir., 26 F.2d 233, certiorari denied 278 U.S. 635, 49 S.Ct. 32, 73 L.Ed. 552.

Plaintiffs argue that the trial court erred in allowing Frank Bush to enter his appearance as a defendant, because he had shortly previously agreed to join with them as a party plaintiff and had in fact signed and filed an appearance asking to be made a co-plaintiff. But Frank Bush had no status or capacity under Missouri law to attack the validity of the will or the proceedings by which it was established, and so could not be a proper party plaintiff. He was not an...

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