Barnett v. Mayes

• Decision Date: 08 September 1930
• Docket Number: No. 232.,232.
• Citation: 43 F.2d 521
• Parties: BARNETT v. MAYES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

43 F.2d 521 (1930)

BARNETT v. MAYES et al.

No. 232.

Circuit Court of Appeals, Tenth Circuit.

August 6, 1930.

Rehearing Denied September 8, 1930.

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Cornelius Hardy, of Wewoka, Okl. (C. M. Threadgill, of Wewoka, Okl., T. M. Baughman, of Sulphur, Okl., and John T. Cooper and A. C. Kidd, both of Wewoka, Okl., on the brief), for appellant.

V. R. Biggers, of Wewoka, Okl. (J. E. Thrift, and C. J. Davenport, both of Sapulpa, Okl., R. W. Kellough, of Tulsa, Okl., Chas. G. Dailey, of Bluffton, Ind., and Irwin L. Wilson, J. Bart Aldridge, and Lynn Adams, all of Wewoka, Okl., on the brief), for appellees.

Before LEWIS, COTTERAL, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge (after stating the facts as above).

I. The appellant assigns as error the trial court's finding that the Mayes deed was not a forgery; his finding that Barnett was not an heir of Leathy Sango; and his finding that Barnett's claim was barred by laches. No useful purpose will be served by a review of the evidence. As to the forgery, the testimony adduced by Barnett, without more, is unconvincing. One of his witnesses testified that "he and Cud agreed to divide whatever was recovered in the lawsuit; that he was to furnish Cud with the witnesses." This same witness, in another lawsuit, took the position that the deed was not a forgery, but that "Leathy Sango did not know what she was doing." The notary public who acknowledged the deed claimed her certificate was false, but discredited her testimony seriously by admitting that after the lawsuit was brought she wrote to a witness to the deed, "not to say anything about the case until she could see her." Many other circumstances tend strongly to discredit the integrity of Barnett's case. On the other hand, the evidence that the deed was genuine is convincing.

Concluding that the deed is genuine, the question of whether Barnett was an heir of Leathy Sango is immaterial. However, the testimony of his witnesses developed a sordid story of Barnett living with two women at the same time; of a lawful marriage to the one who was not the mother of Leathy. The record fully supports the trial court's finding of fact in this regard, as it also does on the question of laches. In any event, the trial court heard the witnesses, and great respect must be paid to his findings of fact. United States v. Peterson (10 C. C. A.) 34 F.(2d) 245; Youngblood v. Magnolia Petroleum Co. (10 C. C. A.) 35 F.(2d) 578; New York Life Ins. Co. v. Griffith (10 C. C. A.) 35 F.(2d) 945; Raines v. Ligon (10 C. C. A.) 37 F.(2d) 633. The decision of the trial court on the merits, was right.

II. Appellant contends that the trial court was without jurisdiction to enter the decree. If that is correct, the decree must be reversed, for jurisdiction of a United States court can never be conferred by consent, nor can jurisdiction ever be waived. Gainesville v. Brown-Crummer Co., 277 U. S. 54, 48 S. Ct. 454, 72 L. Ed. 781; Mansfield C. & L. M. Railway Co. v. Swan, 111 U. S. 379, 4 S. Ct. 510, 28 L. Ed. 462; St. Louis Smelting & Refg. Co. v. Nix (8 C. C. A.) 272 F. 977; Olds Wagon Works v. Benedict (8 C. C. A.) 67 F. 1. Several grounds are set up, one of them being that Barnett's tendered cause of action was legal, and could not be interposed in an equitable action. Such ground, if sound, is not jurisdictional, and was waived by Barnett's prayer for affirmative relief. Mathis v. Ligon (10 C. C. A.) 37 F.(2d) 635, 636. But it is not sound. Barnett asked for the cancellation of various deeds and for an accounting, which invoke equitable powers; furthermore, the proceeding was ancillary. The principal point urged as to lack of jurisdiction is, however, the fact that there was no diversity of citizenship between himself and Mayes, one of the parties against whom he sought relief; and that, except as to the leasehold interest in the 40 acres, the court had no possession of the property prior to the filing of Barnett's answer. We will take up first the question of jurisdiction as to the 40 acre leasehold; later, the jurisdiction as to the fee title to the 40 acres and the 80 acres, which for convenience, we will refer to as the "80 acres."

III. The 40 acre leasehold was in the possession of the United States court; the court was charged with the duty of administering it for the benefit of all creditors. While it was in the possession of the court, no other court had jurisdiction of any kind over it. In Kline v. Burke Constr. Co., 260 U. S. 226, 229, 43 S. Ct. 79, 81, 67 L. Ed. 226, 24 A. L. R. 1077, the court held: "It is settled that where a federal court has first acquired jurisdiction of the subject-matter of a cause, it may enjoin the parties from proceeding in a state court of concurrent jurisdiction where the effect of the action would be to defeat or impair the jurisdiction of the federal court." The court quoted with approval from Covell v. Heyman, 111 U. S. 176, 182, 4 S. Ct. 355, 28 L. Ed. 390, as follows:

"They exercise jurisdiction, it is true, within the same territory, but not in the same plane; and when one takes into its jurisdiction a specific thing, that res is as much withdrawn from the judicial power of the other, as if it had been carried physically into a different territorial sovereignty. To attempt to seize it by a foreign process is futile and void. The regulation of process, and the decision of questions relating to it, are part of the jurisdiction of the court from which it issues."

The power of a court, state or federal, to stay actions in other courts which propose to disturb the possession or title of property in the possession of the first court, is well recognized. The propriety and legality of the order here made, restraining Barnett from proceeding in the state court, cannot be questioned.

Counsel contend, however, that ejectment is an action in personam, and hence not within the rule. The object of the action in ejectment is the possession of the res; if successful, the state court would have been required to issue its writ putting Barnett in possession of the 40 acre leasehold; the sheriff would have found the receiver in possession, and immediately there is that clash of jurisdictions at which the rule of law is expressly aimed. Chief Justice Fuller, sitting on Circuit, passed upon the precise question, and held that an action in ejectment in the state court excluded the federal court from jurisdiction over a suit involving the title to the same property. He said:

"The institution of the action in the state court looking to the taking of possession of the specific property in litigation was in effect the assertion of the right of control over that property. The action in the state court required the control and dominion of the property involved, or it was ineffective for all purposes." Westfeldt v. North Carolina Mining Co. (C. C. A.) 166 F. 706, 711.

The restraining order was properly issued. The further proceedings were initiated by Barnett. Pending the receivership, the doors to other courts were closed to him for any action to oust the receiver and possess himself of the property he claimed. The property was oil property of fluctuating value, and delay of justice might well mean a denial. So he came into the only court open for that purpose, and asked for his property. He alleged a claim against Mayes, a resident of Oklahoma, but he likewise alleged a "prior and superior right adverse to the lien of the complainant," a non-resident.

The court had jurisdiction, pending the receivership, as to all claims involving the title to the property in the possession of the receiver. In Farmers' Loan, etc., Co. v. Lake St. Rd. Co., 177 U. S. 51, 61, 20 S. Ct. 564, 568, 44 L. Ed. 667, the court, speaking through Mr. Justice Shiras, said:

"The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects and persons."

In Wabash Railway v. Adelbert College, 208 U. S. 38, 54, 28 S. Ct. 182, 187, 52 L. Ed. 379, the court said:

"When a court of competent jurisdiction has, by appropriate proceedings, taken property into its possession through its officers, the property is thereby withdrawn from the jurisdiction of all other courts. The latter courts, though of concurrent jurisdiction, are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. For the purpose of avoiding injustice which otherwise might result, a court during the continuance of its possession has, as incident thereto and as ancillary to the suit in which the possession was acquired, jurisdiction to hear and determine all questions respecting the title, the possession, or the control of the property. In the courts of the United States this incidental and ancillary jurisdiction exists, although in the subordinate suit there is no jurisdiction arising out of diversity of citizenship or the nature of the controversy."

The power to determine title to property in the possession of a receiver has been recently exercised by the Supreme Court of the United States in Oklahoma v. Texas, 258 U. S. 574, 42 S. Ct. 406, 66 L. Ed. 771; in that case, the original jurisdiction of the Supreme Court was invoked by a boundary line controversy between states. A receiver was appointed. Private individuals intervened for the purpose of adjudicating individual title to tracts in the disputed territory. The Supreme Court, in the exercise of original jurisdiction, determined these controversies between individuals over the ownership of land. The court, at page 581 of 258 U....