Boatmen's Bank of St. Louis v. Fritzlen

• Decision Date: 04 March 1905
• Docket Number: 2,081.
• Citation: 135 F. 650
• Parties: BOATMEN'S BANK OF ST. LOUIS, MO., v. FRITZLEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

135 F. 650

BOATMEN'S BANK OF ST. LOUIS, MO., v. FRITZLEN et al.

No. 2,081.

United States Court of Appeals, Eighth Circuit.

March 4, 1905

Syllabus by the Court

Whenever upon the filing of a petition for removal, the record discloses a removable cause, the jurisdiction of the state court ceases, and that of the federal court vests.

Motions to remand and for removal should be decided, not by the existence of doubts, but by the preponderance of the facts the law, and the reasons which condition them, in view of the fact that the right to invoke the jurisdiction of the federal court is a valuable and constitutional one; that an erroneous affirmance of a claim to this right may be corrected by the Supreme Court upon a certificate of the question of jurisdiction, while a mistaken denial of the claim is not reviewable, and an error that may be corrected is less grievous than one that is remediless.

Where the fact is patent upon the face of the pleadings and record in a suit that an improper party has been joined, or a sham cause of action has been injected into the case, for the sole purpose of defeating the jurisdiction of the federal court over the real controversy, pleading and evidence of that fact aliunde are not indispensable; and the court may find the attempted fraud upon its jurisdiction from the record alone and prevent its perpetration.

In the determination of the question involving the jurisdiction of the federal court or the removal of causes, indispensable parties only should be considered, and all others should be disregarded.

In determining questions of jurisdiction and removal, the positions assigned parties by the pleader are immaterial. It is the duty of the court to ascertain the real matter in dispute, and to arrange the parties on opposite sides of it according to the facts and their respective interests.

In pleading, a general averment is always limited and controlled by specific allegations upon the same subject.

The holder of a prior mortgage or lein is not a necessary party to the foreclosure of a junior mortgage, because he has no right to redeem to be foreclosed.

Separate and distinct causes of action disclosed by the bill or complaint in a single suit, upon either of which a separate suit could have been maintained, and the determination of neither of which is essential to the determination of the other, constitute separate controversies, within the meaning of section 2 of the Act March 3, 1887, c. 373, 24 Stat. 552 and Act Aug. 13, 1888, c. 866, 25 Stat. 433 (1 U.S.Comp.St. 1901, p. 509); and if either controversy, when the parties have been arranged upon opposite sides of it according to the facts and their respective interests, is wholly between citizens of different states, and can be fully determined as between them, the suit is removable.

(Ed. Note.--Separable controversy as ground for removal of cause to federal court, see notes to Robbins v. Ellenbogen, 18 C.C.A. 86; Vecke v. Valleytown Mineral Co., 35 C.C.A. 155.)

A defendant who is a citizen of a state other than that in which the suit is brought may remove it for prejudice and local influence, notwithstanding the fact that the plaintiff and some of the defendants are citizens of the state in which the action was commenced.

The various judges who sit in the same court should not attempt to overrule the decisions of each other, especially upon questions involving rules of property and practice, except for the most cogent reasons.

The pendency in a state court of a prior action between the same parties which involves the same subject-matter as a subsequent action in the federal court presents no bar, and furnishes no ground for the abatement of the later action.

Wherever one of the courts secures by proper process the custody or dominion of specific property, which it is one of the objects of the suit in the other court to subject to its judgment or decree, the latter action should not be dismissed, but should proceed until the custody of the property is required, and should then be stayed until the proceedings in the court which has obtained the prior custody or dominion are concluded, or ample time for their termination has elapsed.

A court which has the actual custody and possession of property to which another court of concurrent jurisdiction has prior and superior right may lawfully retain the property until the latter court, through its proper officer, requests and offers to receive the actual possession and custody.

On October 9, 1903, the Boatmen's Bank of St. Louis, Mo., a corporation of the state of Missouri, brought an action of replevin in the United States Circuit Court for the District of Kansas against D. G. Fritzlen, Edna P. Fritzlen, his wife, and W. H. Weldon, residents and citizens of the state of Kansas, to recover the possession of certain cattle and other personal property; and on October 16, 1903, the marshal took this property from the defendant D. G. Fritzlen, and delivered it to the plaintiff, pursuant to the command of a writ of that court which had been issued to him. The defendants answered, and thereafter, upon motion of D. G. Fritzlen and Edna P. Fritzlen, the court, on April 25, 1904, rendered a judgment of dismissal, and directed the property and its proceeds returned, on the ground that at the commencement of the action the district court of Clark county, in the state of Kansas, had exclusive jurisdiction over the subject-matter of the action. This writ of error has been sued out to reverse this judgment. It was rendered upon this state of facts: On November 30, 1901, the defendant D. G. Fritzlen gave a note for $32,920.15, and secured it by a mortgage upon the personal property in controversy. The Boatmen's Bank held this note and mortgage. Some time in July, 1903, after this note had become past due, D. G. Fritzlen gave a note for $3,750, and a mortgage on this property to secure it, to W. H. Weldon; and on July 23, 1903, Weldon commenced a suit in the district court of Clark county against D. G. Fritzlen, Edna P. Fritzlen, and the Boatmen's Bank, to set aside and avoid the mortgage of the bank, to enjoin it from taking or interfering with the property, and to foreclose the mortgage for $3,750 upon it, and another mortgage made by Fritzlen and his wife upon a large amount of real estate to secure the same debt. On July 30, 1903, the probate judge of Clark county issued an order which restrained the defendants in that suit from interfering with or removing the personal property. On August 13, 1903, the Boatmen's Bank filed in the district court of Clark county a petition and bond for a removal of the suit on the grounds of a separable controversy, of local prejudice, and that the suit, in its entirety, was one in which the Boatmen's Bank was upon the one side, while Weldon and D. G. Fritzlen and Edna P. Fritzlen were upon the other side. On September 14, 1903, this petition for removal was filed in the United States Circuit Court for the District of Kansas, and on the same day the defendants Weldon, D. G. Fritzlen, and Edna P. Fritzlen made a motion to remand the suit to the state court, and the Boatmen's Bank made a motion to dissolve the restraining order. The court (Judge Lochren presiding) denied the motions to remand, and granted the motion to dissolve the restraining order. Thereupon the action in replevin here under consideration was commenced, and the mortgaged personal property was seized therein, and delivered to the bank, under a writ issued by the Circuit Court to the marshal, and the action proceeded to its dismissal. Meanwhile, on January 12, 1904, D. G. Fritzlen and Edna P. Fritzlen filed a plea to the jurisdiction in the suit of Weldon against the Fritzlens and the bank, by which they presented the same questions which were raised on their motion to remand. A replication to this plea was filed, and the court, in which then and thereafter Judge Lochren was not presiding, ordered that the issue which involved local influence should stand for hearing as though an answer denying the sufficiency of that plea had been interposed. On April 2, 1904, the court sustained the plea to the jurisdiction, and ordered the suit remanded to the state court.

James S. Botsford (B. F. Deatherage and O. G. Young, on the brief), for plaintiff in error.

D. R. Hite, for defendants in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District Judge.

SANBORN Circuit Judge, after stating the case as above, .

The personal property which is the subject of this controversy was taken into the actual custody of the Circuit Court of the United States in the action of replevin by seizure under its writ of October 16, 1903.

That seizure was lawful, and the jurisdiction of that court over the property complete, unless the district court of Clark county then had plenary and exclusive dominion of the property in the Weldon suit. The suit which Weldon brought had been removed from the court of Clark county, where it was commenced in July, 1903, to the Circuit Court, the motion to remand it had been heard and denied, and the restraining order which had been issued in it had been dissolved.

When a petition for removal and the bond required by the act of Congress are filed, and the record on its face shows the right of the petitioner to a removal, the jurisdiction of the state court ceases, and that of the federal court attaches. Railroad Co. v. Mississippi, 102 U.S. 135, 141, 26 L.Ed. 96; Railroad Co. v. Koontz, 104 U.S. 5, 14, 26 L.Ed. 643; Steamship Co. v. Tugman, 106 U.S. 118, 122, 27 L.Ed. 87; Stone v. South Carolina, 117 U.S. 430, 432, 6 Sup.Ct. 799, 29 L.Ed. 962.

If issues of fact arise upon the averments of the petition for removal, the jurisdiction to try them is...