Thomas v. Anderson

• Decision Date: 03 May 1915
• Docket Number: 4303.
• Citation: 223 F. 41
• Parties: THOMAS et al. v. ANDERSON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

223 F. 41

THOMAS et al. v. ANDERSON et al.

No. 4303.

United States Court of Appeals, Eighth Circuit.

May 3, 1915

Alfred N. Gossett, of Kansas City, Mo., for appellants.

William C. Michaels and E. Wright Taylor, both of Kansas City, Mo (Delbert J. Haff, Edwin C. Meservey, and Charles W. German all of Kansas City, Mo., and Alfred T. Levine, of Nashville Tenn., on the brief), for appellees.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

A question of jurisdiction of the trial court lies at the threshold of this case. Though not presented there, except by an assignment of error after final decree on the merits, it is plainly apparent on the record and cannot be ignored. Yocum v. Parker, 66 C.C.A. 80, 130 F. 770.

Three heirs at law of a testatrix sued the executor of her will officially and individually in the District Court of the United States for the Western District of Missouri to recover a part of the residuary estate. The plaintiffs were citizens of Tennessee. The executor, who was also an heir, was a citizen of Missouri. The administrator of a fifth heir likewise a citizen of Missouri, was made a defendant. The single, common point of controversy shown by the bill of complaint was the construction and validity of the clause of the will purporting to dispose of the residuary estate. If the plaintiffs were right in their contention, each of them was entitled to one-thirteenth of that part of the estate, as though in respect thereof the decedent had died intestate, or, if not so, then that the executor took under the will as trustee for them, and the defendant administrator was entitled to a like share for the same reason. On the other hand, if the executor was right, he took the entire residuary estate under the will, to their exclusion. That the executor was also an heir, and had purchased the interests of certain other heirs, is unimportant. He was not asserting the right so derived and acquired to the detriment of the other parties to the suit. There was no controversy on that score. The controversy was directed solely to his claim to the entire residuary estate under the will. In that he stood alone, and the other parties to the suit, contesting his position, stood together against him. There was no dispute between the plaintiffs and the defendant administrator. He was equally interested with them in defeating the executor. Therefore, in aligning the parties for the purpose of jurisdiction, he should be classed as a plaintiff. The result is we have a suit by three citizens of Tennessee and a citizen of Missouri against another citizen of Missouri. That this conclusion does not rest on fanciful premises is confirmed by what occurred after the bill of complaint was filed. The defendant administrator, in answering, admitted the plaintiff's averments and joined them in their prayer for relief. The decree of the court was for him equally with each of them, and with them he now asks an affirmance of the decree. He was a real and proper party plaintiff in the suit, and, being a citizen of the same state as the real defendant, the trial court was without jurisdiction. Watson v. Bonfils, 53 C.C.A. 535, 116 F. 157.

The three plaintiffs who brought the suit could have maintained it without the administrator. The interest of the latter though like, was severable from theirs, and his presence was not essential to the relief they sought in their own behalf. He was a proper party, but not an indispensable one, within the long-settled meaning of those terms. Waterman v. Canal-Louisiana Bank Co., 215 U.S. 33, 30 Sup.Ct. 10, 54 L.Ed. 80; Horn v. Lockhart, 17 Wall. 570, 21 L.Ed. 657. Where a person whose presence in a suit is proper, but not indispensable, cannot be made a party...