Brigel v. Tug River Coal & Salt Co.

• Decision Date: 29 February 1896
• Citation: 73 F. 13
• Parties: BRIGEL et al. v. TUG RIVER COAL & SALT CO.
• Court: United States Circuit Court, District of Kentucky

73 F. 13

BRIGEL et al. v. TUG RIVER COAL & SALT CO.

United States Circuit Court, D. Kentucky.

February 29, 1896

Hollister & Hollister, and Walter A. DeCamp, for complainants.

Thos F. Hargis, and Baxter & Hutchison, for defendant.

BARR District Judge.

The court has heretofore, in June, 1895, allowed the complainants, Leo A. Brigel and Logan C. Murrey, trustees, to amend their bill herein. The effect of this amendment is to drop from the case all of the parties defendant who were originally in the case, except the Tug River Coal & Salt Company. The purpose of this amendment is, as in the original bill, a foreclosure of the trust deed to Brigel and Murrey, and does not change the nature of the action, except the bill as emended is not for the purpose of marshalling the liens, whether judgment liens or others, which may be against the mortgaged property, but inferior to the mortgage, but simply a foreclosure and sale. The effect of the amendment, as it stands, is to give the court jurisdiction to foreclose the trust deed, as against the Tug River Coal & Salt Company. This amendment was allowed under the authority of the circuit court of appeals, given in the original case, which is reported in 14 C.C.A. 577, 67 F 625. In this amendment it is stated that Leo. A. Brigel trustee, is a citizen of the state of Ohio, and that Logan C. Murrey, trustee, is a citizen of the state of New York. In the original bill, which was filed March 26, 1892, the same allegation was made.

The defendant the Tug River Coal & Salt Company has filed a plea in which it is alleged that the complainant Logan C. Murrey, trustee, is not a citizen of the state of New York, as in the amended bill alleged, but that said Murrey is, and was at the time said amended bill was filed, and for many months prior to the time at which the judgment heretofore rendered was reversed in the circuit court of appeals, a citizen of the state of Kentucky, and a resident of the city of Louisville, and was a citizen and resident of the same state as the defendant the Tug River Coal & Salt Company at the time said amended bill was filed, and at the time said circuit court of appeals reversed said judgment, and for several months previous thereto. This plea has been set down for argument, and argued, and it must be assumed that the allegations of the plea are true. The plea does not deny the citizenship of Murrey in the state of New York, as alleged in the original bill. Therefore the plea presents the question of whether or not the court has jurisdiction, assuming that Brigel was a citizen of the state of Ohio, and Murrey a citizen of the state of New York, when the original bill was filed and the suit commended, but is now a citizen of Kentucky, and that the defendant the Tug River Coal & Salt Company was at the time, and still is, a corporation incorporated and organized under the laws of the state of Kentucky. It is settled that if, at the commencement of the suit, the diverse citizenship exists and is alleged, no change of citizenship thereafter will divest the circuit court of jurisdiction. Thus, it is held in Mullen v. Torrance, 9 Wheat. 537, that a plea to the jurisdiction, stating that certain parties to the bill were citizens of the state of Mississippi at the time the plea was filed, was defective, because it did not allege that both were citizens of the same state at the time the action was brought. In Conolly v. Taylor, 2 Pet. 564, it is stated that if an alien should sue a citizen, and should omit to state the character of the parties to the bill, though the court could not exercise jurisdiction while the defect in the bill remained, yet it might be corrected at any time before the hearing, and the court could take jurisdiction. In that case Chief Justice Marshall said:

'The bill is filed in the court of the United States, sitting in Kentucky, by aliens and by a citizen of Pennsylvania. The defendants are citizens of Kentucky, except one, who is a citizen of Ohio, on whom process was served in Ohio. The jurisdiction of the court cannot be questioned, so far as respects the alien plaintiffs. As between the citizen of Pennsylvania and of Ohio, neither of them being a citizen of the state in which the suit was brought, the court could exercise no jurisdiction. Had the cause come on for a hearing in this state of the parties, a decree could not have been made in it, for want of jurisdiction. The name of the citizen plaintiff, however, was struck out of the bill before the cause was brought before the court; and the question is whether the original defect was cured by this circumstance,--whether the court, having jurisdiction over all the parties then in the cause, could make a decree. The counsel for the defendants maintain the negative of this question. They contend that the jurisdiction depends on the state of the parties at the commencement of the suit, and that no subsequent change can give or take it away. They say that, if an alien becomes a citizen pending the suit, the jurisdiction which once vested is not divested by this circumstance. So, if a citizen sue a citizen of the same state, he cannot give jurisdiction by removing himself, and becoming a citizen of a different state. This is true, but the court does not understand the principle to be applicable to the case at bar. Where there is not change of party, a jurisdiction depending on the condition of the party is governed by that condition as it was at the commencement of the suit. The court in the first place had complete original jurisdiction. In the last it had no jurisdiction, either in form or substance. But if an alien should sue a citizen, and should omit to state the character of the parties in the bill, though the court could not exercise its jurisdiction while this defect in the bill remained, yet it might, as in everyday practice, be corrected at any time before the hearing, and the court would not hesitate to decree in the cause. So in this case. The substantial parties plaintiff-- those for whom the benefit of the decree is sought-- are aliens, and the court has original jurisdiction between them and all the defendant. But they prevented the exercise of this jurisdiction by uniting with themselves a person between whom and one of the defendants the court cannot take jurisdiction. Strike out his name as a complainant, and the impediment is removed to the exercise of that original jurisdiction which the court possessed, between the alien plaintiffs and all the citizen defendants. We can perceive no objection, founded in convenience or in law, to this course.'

In the case of Anderson v. Watt, 138 U.S. 694, 11 Sup.Ct. 449, the supreme court, by Chief Justice Fuller, considered and applied the case of Conolly v. Taylor, 2 Pet. 564. In that case the suit was brought by Gustavus W. Faber and James S. Watt, describing themselves as both of the city and state of New York, and citizens of the state of New York, executors of the last will of James Symington, deceased, late of the state of New York, against J. C. Anderson, etc., a citizen of the state of Florida, and also against Sarah J. Davis, a citizen of the state of Florida, for the foreclosure by sale of the property of a mortgage given by E. J. Wilson to James Symington, deceased. One of the material questions in the case was whether or not Sarah J. Davis, who was a married woman, was a citizen of the state of New York, or a citizen of the state of Florida. The court decided that she was a citizen of the state of New York, and therefore of the same citizenship as the plaintiffs. This defect was attempted to be amended during the progress of the case by striking out from the address the words 'Gustavus W. Faber and James S. Watt, both of the city and state of New York, and citizens of the state of New York,' and inserting therein as follows:

'Gustavus W. Faber, of the city and state of New York, and James S. Watt, a subject of the kingdom of Great Britain, temporarily residing in the city of New York.'

It was further ordered that: 'It appearing to the court that letters testamentary on the estate of James Symington, deceased, heretofore issued to Gustavus W. Faber, deceased, one of the complainants herein, suing as one of the executors of James Symington, deceased, have been revoked, as is shown by a duly-exemplified copy of the records of the surrogate court of the county of New York, state of New York, filed herein, it is therefore ordered, adjudged, and decreed, on motion of the complainants herein, that this cause proceed in the name of the said James S. Watt, sole surviving executor of James Symington, deceased, and that it be discontinued as to said Gustavus W. Faber, suing as co-executor.'

And the exemplified copy referred to, which was filed, showed that Faber had previously filed a petition in the surrogate's office for a decree revolving the letters testamentary issued to him, and that the decree of revocation had been entered. It was insisted,...