278 F.2d 104 (8th Cir. 1960), 16364, Kozak v. Wells

Docket Nº:16364.
Citation:278 F.2d 104
Party Name:Frank J. KOZAK et al., Appellants, v. Willard B. WELLS, Administrator, etc., et al., Appellees.
Case Date:April 26, 1960
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 104

278 F.2d 104 (8th Cir. 1960)

Frank J. KOZAK et al., Appellants,


Willard B. WELLS, Administrator, etc., et al., Appellees.

No. 16364.

United States Court of Appeals, Eighth Circuit.

April 26, 1960

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Joseph O. Janousek, Washington, D.C. and John R. Green of Green, Hennings, Henry & Evans, St. Louis, Mo., for appellants.

Everett A. Bogue, Vermillion, S.D., for appellees, Willard B. Wells, administrator, Lillian Fejfar Griffin and Louis B. French.

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Before GARDNER, WOODROUGH and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This is an appeal by Frank J. Kozak, Josephine Peterka and Emil Cwach, citizens of South Dakota, from the district court's order dated August 13, 1959, denying each appellant's separate motion for leave to intervene as a plaintiff. The appellees who have appeared here (Willard B. Wells, as Administrator of the Estate of William L. Bruce, deceased, Lillian Fejfar Griffin and Louis B. French) are 3 of several defendants in what we shall call the main action. The court's order also dealt with 25 other motions, filed by parties to the main action, which had accumulated and were pending; some of these were granted, some were denied and some were dismissed as being moot. By order of this court the printing of the record on this appeal was excused and the original file of the district court is before us in its entirety. This file has been carefully reviewed.

The appeal found its place on our calendar for the March Session. The appellees' case was noted as submitted on their brief. On the hearing day the appellants filed a written motion that oral argument be reset to a later date. No grounds for this were specified. The motion was therefore denied and the appellants' case is also taken on briefs under this court's Rule 13(g), 28 U.S.C.A.

The main action, instituted September 6, 1957, is a diversity case brought by citizens of Maryland, namely, Emma Janousek, as widow, heir and Administratrix of the Estate of Joseph Janousek, deceased, and by said decedent's 2 children, Eunice Janousek and Joseph O. Janousek, who are the other heirs, against a number of citizens of South Dakota, and against Lillian Fejfar Griffin who may be described at this point in the litigation as a citizen of either Iowa or South Dakota.

It is not necessary, for purposes of this appeal, to set forth in detail the allegations of the pleadings in the main action and it suffices merely to summarize them. The amended complaint, filed August 25, 1959, by leave of court upon motion and after notice, asserts the jurisdictional amount and contains 2 counts. The first count refers to the establishment of a townsite called Janousek, between Yankton and Tabor in Yankton County, South Dakota, after litigation culminating in Nedved v. Chicago, M. & St. P. Railway Co., 36 S.D. 1, 153 N.W. 886, decided by the Supreme Court of South Dakota in 1915. The decedent Joseph Janousek participated as counsel for the successful parties in that litigation. A surveyor's certificate and plat of the townsite, consisting of over 100 lots owned by the decedent was filed for record in 1916 and contained a dedication to public use forever by the decedent and his wife, one of the present plaintiffs, of the streets and alleys shown on the plat. The plaintiffs then allege the decedent's exercise of ownership over the townsite until his death on November 1, 1918, and his sale of lots therefrom; a lack of knowledge until recently on the part of any of the plaintiffs of the extent of the decedent's ownership of property in the townsite; the status of the appellee Wells' decedent Bruce as a trusted business advisor of Janousek's widow; a series of acts by Bruce and other defendants of domination over most of the townsite by way of a trust, court proceedings, instruments of conveyance and the like, amounting to an unlawful confederation between Bruce, Mrs. Griffin and Mrs. Griffin's parents to deprive the plaintiffs of their property in the town; misrepresentation and fraud on the part of Bruce and Griffin and malicious effort on their part to efface and destroy the identity and existence of the town; trespass by Mrs. Griffin upon the plaintiffs' property with plows and excavating equipment; and destruction of streets, alleys, curbs and sidewalks, closing off of public thoroughfares and the like. The relief requested includes the annulment of a 1919 state court trusteeship order and of a 1948 state court title judgment, the invalidation of certain deeds, the quieting of plaintiffs' title in specified

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lots and of the title of other lots in named persons, accountings, and an injunction. The second count incorporates the allegations of the first, alleges injury and malice and seeks judgment for compensatory and punitive damages.

By separate amended answer Griffin sets forth a general denial; alleges that the decedent Janousek's title to lots in the townsite was as trustee only and that this interest terminated upon his death; specifically denies all allegations of confederation, concealment, fraud and deception, and raises the affirmative defenses of the statutes of limitations, estoppel, laches and res judicata. Similar defenses are alleged by Wells and French in separate answers. Answers were also filed by other defendants.

The respective motions for leave to intervene were filed by Kozak on February 12, 1958, and by Peterka and Cwach on August 15, 1958. This was after the filing of an answer by one defendant (Wagner), of plaintiffs' motion for leave to amend their complaint, and of motions by Bruce, French and Griffin to dismiss and to strike the plaintiffs' pleadings, but before the court's order of August 13, 1959, which also granted leave to file the amended complaint and denied the motions to dismiss and to strike, and before the other answers were filed. Each intervention motion is accompanied by the pleading, here in the form of a complaint, required by Rule 24(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A.

Kozak, by his complaint in intervention, alleges that he is the owner of 6 lots in the townsite, that one of these is improved by a residence and outbuildings and is presently occupied by Kozak's father, and that, except for his intervention, he would be denied relief and is without adequate representation of his interests and will or may be bound by the judgment and orders in the main action. He then alleges with respect to his property acts of trespass and destruction similar to those in the plaintiffs' complaint, including destruction of public streets and alleys, curb lines, sidewalks, his boundary markers, etc., and specifically states that the sole access he and his father have to the residence is by a roadway, which is the only public street of the town not yet unlawfully obstructed, and that the defendants or some of them have threatened to fence and plow this street and thus deny the intervener access to his property. Kozak seeks an injunction and an accounting.

Peterka by her complaint claims an undivided interest in one lot in the townsite and alleges that Bruce by a 1941 deed purported to convey some interest in that lot to the father of Griffin, that Bruce had no interest in the lot, that Griffin's parents quit-claimed the lot to Griffin in 1946, that this was part of an unlawful confederation to deprive the intervener of her property and to destroy and eliminate the town. Allegations similar to those in the plaintiffs' complaint are then made or incorporated. Peterka claims that she is without adequate representation of her interests in the main action and that she will be bound by the result thereof. She seeks the voiding of deeds, the annulment of the state court 1948 judgment, the quieting of title of her lot interest, an accounting and an injunction.

Cwach's complaint alleges his ownership of a lot in the townsite, the sustaining of trespass and wrongs similar to those alleged by the plaintiffs, the absence of adequate representation, and his being bound by orders and judgment in the main action. He also seeks an injunction and an accounting.

It is to be noted that Kozak's complaint in intervention differs from the others in that he alleges occupancy and residence by his father, and threatened denial of access to that property, and that Peterka's complaint differs from the others in that she claims interference with her formal record title, whereas no such claim is made by either Kozak or Cwach.

The appellees oppose the interventions on the grounds (1) that the appellants have not brought themselves within the requirements of Rule 24, Federal Rules of Civil Procedure, and (2) that there is no federal jurisdiction under 28 U.S.C.A.

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§ 1332, inasmuch as each intervener is a citizen of South Dakota, and thus does not satisfy the diversity requirement, and has failed to allege the jurisdictional amount.

Joseph O. Janousek, who is primary attorney for the plaintiffs in the main action and is also one of the plaintiffs, is an attorney for each of the 3 interveners.

We state at the outset that in view of the fact that this case is a seemingly bitter argument, over a tract of land, between what are essentially two groups (one consisting of those persons claiming title primarily through the decedent Janousek and the other of those having to do with title transfers through Bruce and defendant Griffin's parents), it is our feeling that this controversy would best be settled, if possible, in single prompt litigation in one forum rather than in separate and delayed disassociated actions in perhaps more than one court. We must be certain that, however desirable this result may be, it must not be accomplished through an undue extension of federal jurisdiction, Rule 82, F.R.C.P.

The order, to the extent it denies intervention sought as a matter of right, is appealable. Brotherhood of R. Trainmen v. Baltimore & O.R. Co., 331 U.S....

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