Armstrong v. New La Paz Gold Mining Co., 9167.

• Decision Date: 08 November 1939
• Docket Number: No. 9167.,9167.
• Parties: ARMSTRONG et al. v. NEW LA PAZ GOLD MINING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

107 F.2d 453 (1939)

ARMSTRONG et al. v. NEW LA PAZ GOLD MINING CO.

No. 9167.

Circuit Court of Appeals, Ninth Circuit.

November 8, 1939.

Wilson & Wilson and W. Francis Wilson, all of Phoenix, Ariz., for appellants.

Bradner & Weil by Jerold E. Weil, of Los Angeles, Cal., for appellee.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

STEPHENS, Circuit Judge.

Complaint was brought in the District Court by the appellee corporation against "Aikman Armstrong, Wallace Mark Plummer, B. W. Vallet and Charles Burr McDonald, doing business as Palo Verde Commercial Company, Defendants", claiming damages for conversion of personal property. The Complaint alleges that the plaintiff is a corporation organized under and by virtue of the laws of the State of Arizona; that the defendants Plummer and Armstrong are citizens of the State of California; and that the defendant McDonald is a citizen of the State of Arizona. Upon motion of the plaintiff, before answer, the action was ordered dismissed as to McDonald and judgment to such effect was duly entered. No appeal has been taken therefrom. After trial, which was had without a jury, judgment went in favor of the plaintiff and against all remaining defendants, who appeal. The appeal appears also to include the dismissed defendant McDonald, but as he is not a party to the judgment appealed from such attempted appeal is dismissed. The appeal on its face is also from the order denying defendants' motion for a new trial. We shall, of course, notice only the appeal from the judgment.

Appellants attack the jurisdiction of the District Court to entertain the action or to render any judgment, contending that the action is against the copartnership, and that McDonald was therefore an indispensable party. If this were true it would follow that there would not be the diversity of citizenship necessary to confer jurisdiction on the federal courts. However, upon this point we deem it sufficient to say that the defendants herein are sued individually upon their joint and several liability for the alleged tort. That such joint and several liability exists in Arizona is clear from Revised Code of Arizona, 1928, Section 3836 and the case of Evans v. Colorado Sav. Bank, 41 Ariz. 504, 19 P.2d 1062. We believe that Arizona would follow the general rule, as well stated by the court in Murphy v. Coppieters, 136 Cal. 317, 68 P. 970, 971, as follows:

"Nor was it necessary to bring suit against appellants as copartners; for, when a cause of action for tort exists against a copartnership, the several partners may be sued individually, if so preferred. We quote from Lindley on Partnership, at page 283: `Supposing a tort to be imputable to a firm, an action in respect to it may be brought against all or any of the partners. If some of them only are sued, they cannot insist upon the other partners being joined as defendants; and this rule applies even where the tort in question is committed by an agent or servant of the firm, and not otherwise by the firm itself.'"

Defendants' next point is the claimed insufficiency of the monetary value involved in the action to confer jurisdiction on the District Court. The damages alleged in the complaint amount to $7,900 with interest, but the court fixed the value of the property at the time of the conversion at $2,880 and awarded damages in this sum plus interest in the amount of $358.56, and for costs of suit. It is argued that such finding as to value establishes that plaintiff's claim for damages in the sum of $7,900 was but colorable and does not act to establish jurisdiction. The facts show that shortly prior to the alleged conversion plaintiff had entered into an agreement, which was never consummated, to sell the property in question to one B. Bernson at a price which subsequently proved to be $2,400. On the other hand, a Mr. Leytus, a dealer in second-hand pipe and oil well supplies, testified to a value per foot which would amount to around $7,800 for the pipe alleged to have been converted. Furthermore, the defendant Armstrong himself testified that his company sold the pipe in April and May of 1937 (four or five months after the alleged conversion) for $.45 per foot, or for a total amount of approximately $4,300.

The Supreme Court in St. Paul Mercury Ind. Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed. 845, gives the rule governing dismissal for want of jurisdiction in cases brought in the Federal Court, as follows: "* * * the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. * * *"

Such legal certainty does not appear in the instant case.

We turn now to a consideration of the merits of the case.

Plaintiff was the owner of certain unpatented mining claims located in Yuma County, Arizona. In 1920...