Armour & Co. v. Miller

• Decision Date: 22 July 1937
• Docket Number: No. 402.,402.
• Citation: 91 F.2d 521
• Parties: ARMOUR & CO. v. MILLER, Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

91 F.2d 521 (1937)

ARMOUR & CO. v. MILLER, Judge.

No. 402.

Circuit Court of Appeals, Eighth Circuit.

July 22, 1937.

Howard G. Fuller, of Fargo, N. D. (Fuller & Powers, of Fargo, N. D., and Walter C. Kirk, of Chicago, Ill., on the brief) for petitioner.

E. T. Conmy, of Fargo, N. D., for respondent.

Before WOODROUGH, THOMAS, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

This is an original petition for the writ of mandamus to require the Honorable Andrew Miller, as judge of the District Court of the United States for the District of North Dakota, herein called respondent, to retain and exercise jurisdiction over certain parties and subject-matter for the determination of all damages sustained by such parties and all of the parties plaintiff, in a certain action for an injunction and all further relief, now pending in the court of which respondent is the duly appointed, qualified, and acting judge; that he vacate a part of his interlocutory decree in such action in which he declined to retain jurisdiction for the assessment of damages; that on the record, or on proper application, he restrain those plaintiffs over whom he declined to retain jurisdiction, from the further prosecution of numerous certain actions for damages, now pending in a state court, and "for further relief."

The respondent filed a full and lengthy return; thereupon petitioner filed a motion for judgment on the pleadings, and on this motion the case came on for hearing before this court.

In this situation, we are of the view that the return of the respondent imports verity, and while such return denies one or two unimportant allegations of the petition for the writ of mandamus, we must assume that such denied allegations are untrue.

The facts are entangled and confusing and not the less so because there are numerous references to the many plaintiffs and groups thereof in the state court cases, and in the federal court case of John Storley v. Armour & Co., and in the briefs here and in the petition for the writ, as the "32", the "44", the "12", the "16", and the "38." No doubt, the adoption of this small-arms ordinance nomenclature saved much labor to counsel, who thus avoided setting out names and groups, but we have found it confusing, so that it has been well-nigh impossible for us to check accurately the facts in the case.

But these facts seem to run fairly thus: In 1934 and for a number of years prior thereto, petitioner, Armour & Co., owned and operated stockyards and a packing plant, whereat daily they slaughtered and prepared for market some 2,000 head of live stock. This plant was located on the Sheyenne river, at a point at or near West Fargo, in Cass county, N. D., and upstream from the farms of each of the many plaintiffs in the injunction suits next below mentioned.

On or about July 6, 1934, one John Storley, as plaintiff and 31 others, who were farmers, owning, occupying, and operating farms on and abutting on, the Sheyenne river, each began separate actions in the state district court of Cass county to enjoin Armour & Co., from polluting the waters of Sheyenne river by discharging therein offensive offal and effluent from its packing plant and stockyards, and for damages. All of these 32 actions were removed by Armour & Co., defendant therein, to the District Court of the United States, for the District of North Dakota, then and now presided over by respondent.

On December 24, each of the 32 plaintiffs, except John Storley, asked and was permitted to amend his respective complaint, so as to eliminate all reference to and prayer for equitable relief; thus leaving the actions to stand for damages only. All of these actions wherein the damages claimed did not exceed $3,000 were remanded to the state court. Those wherein the alleged damages exceeded $3,000 were transferred to the law side of the docket (again except Storley, below especially referred to). Against these amendments, and the remanding of the cases, counsel for Armour & Co. objected, but saved no exceptions.

Thereafter, each and all of these 32 cases, except the Storley case, were on February 11, 1935, compromised and settled by the payment of all damages accrued up to January 1, 1936. This compromise settlement was by stipulation, which provided, in effect, that on or after November 1, 1935, any of the 31 plaintiffs, if the nuisance had not earlier been abated by Armour & Co., could ask for a setting and trial of the Storley case (an alleged class action, wherein the damages claimed were $3,500). Thereupon, all of the cases, except that of Storley, were dismissed in the federal court and in the state court, respectively; leaving of the entire 32, only the case of Storley pending. In the latter case a special stipulation was filed, wherein it was agreed that that case should be continued till November 1, 1935, and in the meantime, Armour & Co. should install "facilities for primary treatment by screening and settling of packing house waste." If, however, on or after November 1, 1935, Storley should still deem unlawful pollution of Sheyenne river to exist, he was privileged to bring the case of Storley v. Armour & Co. on for trial on the bill as filed by him, save that "all damages accruing to Storley up to January 1, 1936," were compromised, paid, and eliminated from the complaint.

In October, 1936, counsel for Storley (who was also counsel for the 31 other plaintiffs, whose individual actions for damages and injunctions had been dismissed after amendment, so as to pray for damages only) moved the federal District Court to set the Storley case down for trial. It was accordingly set for trial for December 8, 1936. At the beginning of the trial some 44 farmers with like alleged damages and grievances were by stipulation made plaintiffs in the case of Storley v. Armour & Co. These included those (and among them the 16 whose names are set out below) who had theretofore sued, settled, and dismissed their suits, and others who seemingly had not then brought suits in any court. The names of those (16 in all), who had in October and November, 1936, each brought, and then had pending in the state district court for Cass county, actions at law against Armour & Co. for damages accruing since January 1, 1936, were:

E. A. Ecklund, H. L. Ecklund, Edwin Waa, and Theodore Waa, individually and as Waa Bros., Carl Rudolph Landblom, Herman Rust, Roy Landblom, Arthur Waa, L. Oquist, Helmer Paulson, Gust A. Johnson, Alfred Selstedt, Mrs. Ida Ostrom, administratrix of the estate of G. H. Ostrom, Charles A. Hyde, Mary Hyde Bell, and Nellie Hyde Chapman. Each of these plaintiffs claimed damages in the sum of $1,800 only, except the last three above-named, who sued jointly for $3,000.

Each of the above-named persons were among those, who pursuant to stipulations, had voluntarily had themselves made parties to the suit of Storley v. Armour & Co. at the beginning of the trial thereof, but after they had filed suits for damages in the state court. It is not presently seen to be important, but for the sake of accuracy it may be said that the last three of the above-named persons brought their joint action for damages in the state court after the Storley suit was tried, but before the rendition of the interlocutory decree therein, whereof petitioner complains in the action at bar.

Armour & Co. came into the state court and filed answers in each of 13 damage suits. These answers were general denials and were filed as counsel for Armour & Co. urge, in effect, to prevent the taking of judgments by default. Counsel for respondent says that the status quo could have been maintained by filing a demurrer, under the statute of North Dakota Be the law on the latter point as may be, we do not think it has any decisive bearing in this case.

Thereafter, and in January, 1937, the respondent made and filed findings of fact and conclusions of law and entered what is called in the record an interlocutory decree in the case of Storley v. Armour & Co., to the effect that though a continuing nuisance as to the plaintiffs in that case existed, he would defer the entry of a final decree permanently enjoining Armour & Co. for one year to the end that the latter might be enabled in the meantime to find and install some method or device by which to abate the existing nuisance. Respondent, to permit this installation to be accomplished, retained jurisdiction of the case for the assessment of damages down to the date of the final decree, "in such wise as may be consistent with the practice and procedure in equity," as to John Storley and all those who had been made plaintiffs in the case, except as to the 16 persons whose names we have set out above, and who then had 13 individual damage suits pending in the state court. As to such 16, he decided that comity existing between the state court and the federal District Court conferred power on him to use his discretion as to whether he should retain them as plaintiffs in the Storley suit and therein assess their damages, or permit their damages to be assessed by the state court, wherein as said already they had sued in October and November, 1936, and January, 1937, respectively. So respondent declined to retain jurisdiction over them as to the matter of damages relegating that matter to the state court, out of deference to comity, which in his opinion vested in him a discretion so to do. Hence this case.

Petitioner herein insists that the court of respondent acquired jurisdiction over all plaintiffs in the equity suit prior to the beginning by the 16 named above of their actions for damages in the state court, and so it was the duty of respondent to retain that jurisdiction and assess their damages up to the date of the final decree therein, and so, therefore, abdication of such jurisdiction was as to such 16 unlawful and can be controlled by this court by the writ of mandamus.

As set forth by us early in the statement of facts, we are asked to issue...