Duchesse d'Auxy v. Porter

• Decision Date: 18 January 1890
• Court: U.S. District Court — District of Connecticut
• Parties: DUCHESSE D'AUXY v. PORTER et al.

41 F. 68

DUCHESSE D'AUXY v. PORTER et al.

United States Circuit Court, D. Connecticut.

January 18, 1890

Alfred T. Ackert, for plaintiff.

H. C. &amp L. F. Robinson, for defendants.

SHIPMAN J.

This is an action of account by the plaintiff, as administratrix of Robert Soutter, who was in his life-time a member of the firm of Soutter & Co., against his three surviving copartners Porter, Fitzhugh, and W. K. Soutter, for an account of the copartnership transactions. The complaint alleges that the complainant is a citizen of the state of New York, and that the defendant Porter is a citizen of the state of Connecticut. The citizenship of the other two defendants is not averred, but it is admitted that they are citizens and residents of the state of New York. They were not served, and have not appeared. Porter was served, and has appeared. The complaint alleges that the complainant was, by an order of the surrogate of the county of New York, duly appointed, and now, is, administratrix of the estate of Robert Soutter, with the will annexed, and that neither of the defendants has ever accounted to the estate in respect of the said copartnership. The defendant Porter has demurred to the complaint because it does not show that the requisite diverse citizenship existed and because it does show upon its face that the complainant is a foreign administratrix, and has not received letters of administration from the proper courts of the state of Connecticut.

As it is admitted that Fitzhugh and William K. Soutter are, and were at the commencement of the action, citizens of the state of New York, the suit is one in which citizens of that state are the plaintiff and two of the defendants, and a citizen of Connecticut is the third defendant. The action being one of account against three surviving partners, the New York defendants are necessary, and not merely nominal, parties and are adverse in interest to the plaintiff. If there was nothing more in the case, it would be plain that the court was without jurisdiction. Peper v. Fordyce, 119 U.S 469, 7 S.Ct. 287; Walden v. Skinner, 101 U.S. 577; Barney v. Baltimore City, 6 Wall. 285. But it is claimed that the act of 1839 (now section 737 of the Revised Statutes) enables the court to entertain jurisdiction. This act authorizes the circuit court to entertain jurisdiction, and proceed to the trial and adjudication of suits between parties who are properly before it, when there are several defendants, and one or more of them are neither inhabitants nor found within the district in which the suit is brought, and do not voluntarily appear; but it is provided that the judgment shall not conclude or prejudice the parties not served with process, and not voluntarily appearing. It is well settled that this section does not require a court to entertain or continue jurisdiction of a suit, especially in equity, where...