265 F.2d 870 (8th Cir. 1959), 16143, Dryden v. Dryden

Docket Nº:16143.
Citation:265 F.2d 870
Party Name:William J. DRYDEN, Appellant, v. Margaret B. DRYDEN, Theodore Loving Dryden and David L. Dryden, Appellees.
Case Date:April 14, 1959
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 870

265 F.2d 870 (8th Cir. 1959)

William J. DRYDEN, Appellant,

v.

Margaret B. DRYDEN, Theodore Loving Dryden and David L. Dryden, Appellees.

No. 16143.

United States Court of Appeals, Eighth Circuit.

April 14, 1959

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Ralph M. Jones, Kansas City, Mo. (Roy P. Swanson, John C. Thurlo, and Blackmar, Swanson, Midgley, Jones & Eager, Kansas City, Mo., on the brief), for appellant.

Rufus Burrus, Independence, Mo., for appellee Margaret B. Dryden.

Before SANBORN, JOHNSEN, and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal from final order dismissing Counts I, III, and IV of plaintiff's complaint for want of federal jurisdiction. 1 Jurisdiction is based upon

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diversity of citizenship. Plaintiff is a citizen 2 of the District of Columbia. All defendants are citizens of Missouri. Each count alleges that the amount in controversy exceeds $3, 000.

Plaintiff in the various counts of his complaint asserts claims against real estate alleged to have been acquired by him as heir of his father, L. T. Dryden, and his mother, Mary Dryden. L. T. Dryden was married three times. He first married Carrie Dryden. Defendant Theodore Dryden is the sole issue of said marriage. L. T. Dryden's second marriage was to Mary Dryden, now deceased. The plaintiff and defendant David Dryden were the issue of that marriage. L. T. Dryden at the time of his death was married to defendant Margaret Dryden, who survived him. No children were born as the result of this marriage. L. T. Dryden died intestate on December 9, 1957, leaving as his heirs his three sons, above named, and his widow, Margaret Dryden.

In Count I plaintiff alleges that his mother, Mary Dryden, received a substantial inheritance from her father; that the proceeds of such inheritance, belonging solely to Mary Dryden, were, with her consent, used by L. T. Dryden to purchase certain real estate, referred to in the record as Lots A and B; that none of L. T. Dryden's funds went into the purchase; that title to the real estate was taken in the name of L. T. Dryden; that L. T. Dryden became trustee of said land for the benefit of Mary Dryden and her heirs; that plaintiff and David Dryden are the sole heirs of Mary Dryden and that under the law of Missouri they are entitled to said land. In Count II, which is not directly involved in this appeal, plaintiff asserts that L. T. Dryden invested large sums of money belonging to the plaintiff as heir of his mother in real estate, described in the record as Lot C, taking title thereto in his own name, although he furnished no part of the consideration; that L. T. Dryden became trustee of said land for the plaintiff, and that plaintiff is entitled to be adjudged the sole owner of Lot C. In Count III plaintiff prays for the partition of land known as Lot D. Plaintiff alleges that his father, L. T. Dryden, died seized of said land, and that by virtue of the laws of descent in Missouri title thereto is vested one-half in Margaret Dryden and one-sixth each in plaintiff, David Dryden, and Theodore Dryden. In Count IV plaintiff asked for alternative relief in the event he is not given the relief he asks for in Counts I and II. Plaintiff alleges that if his claims for relief made in Counts I and II are not established he at least inherited a one-sixth interest from his father, L. T. Dryden, in Lots A, B, and C involved in Counts I and II; that title to said property should be established in the same persons and in the same proportions and upon the same basis as urged in Count III; and that partition of said real estate should be ordered.

Defendant Margaret Dryden filed no answer to Counts I, III, and IV of the complaint, but, instead, filed a motion to dismiss for want of jurisdiction. Theodore Dryden in his answer denied plaintiff's allegations supporting Counts I and II and prayed for the dismissal of such

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counts. The answer admitted the allegations of Counts III and IV and joined in plaintiff's prayer for partition. David Dryden in his answer did not controvert any of the allegations of Counts I, III, and IV and joined plaintiff in his prayer for relief as to each of said counts. He denied the allegations of Count II not here involved. The trial court realigned David as a plaintiff as to Count I, and realigned David and Theodore as plaintiffs as to Counts III and IV. Such realignments destroyed diversity of citizenship between the parties as to Counts I, III, and IV. The trial court dismissed said counts for want of jurisdiction. This appeal followed.

Upon the face of the pleadings the requisite diversity of citizenship appears between the plaintiff and the defendants. The plaintiff is a citizen of the District of Columbia and all defendants are citizens of Missouri. However, it is well established that the designation of parties as plaintiff or...

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