Carver v. Jarvis-Conklin Mortg. Trust Co.

• Decision Date: 03 March 1896
• Citation: 73 F. 9
• Parties: CARVER et al. v. JARVIS-CONKLIN MORTGAGE TRUST CO. et al.
• Court: U.S. District Court — Eastern District of Tennessee

73 F. 9

CARVER et al. v. JARVIS-CONKLIN MORTGAGE TRUST CO. et al.

United States Circuit Court, E.D. Tennessee, Southern Division.

March 3, 1896

Shepherd & Frierson, for complainants.

Brown &amp Spurlock, for defendants.

SEVERENS District Judge.

The grounds on which this motion is founded by counsel for complainants are:

First. Because this court has not jurisdiction of the subject-matter of the case. It is urged that the case is of such a character that the court could not take original jurisdiction of it if it had been commenced here, and therefore it may not take jurisdiction by removal from the state court. The conclusion is sound if the premises are. To determine whether they are so it is necessary to take into view an outline of the bill. It appears from that, that the complainants, who are husband and wife, made a loan of money from the first-named defendant, and executed their bond to it for the payment of the same. To secure the payment of the money according to the terms of the bond, they executed a deed of trust of certain real estate in the city of Chattanooga, Tenn., to Samuel M Jarvis, with a proviso that, in case of his death, absence disability, or refusal to act, Stanley L. Conklin should succeed in the trust, or, in case of his disability, either Jarvis or Conklin might appoint a trustee. For some reason not disclosed by the bill, Jarvis appointed one W. A. Smith to act as trustee under the mortgage. It is stated in the bill that this appointment was illegal and void, because the conditions upon which the power to make such appointment had not occurred. The special facts pertinent to this allegation are not stated. Default in payment having been made, Smith was proceeding to foreclose and sell under the deed of trust. Thereupon the complainants filed their bill in the state court of Tennessee against the above-named trust company, Jarvis, Conklin, and Smith, to enjoin the sale. The grounds on which that bill was filed were not stated in the present bill. The trust company and Smith answered; Conklin and Jarvis did not. The trust company filed a cross bill against the complainants, and none others, for the purpose, as is to be inferred, though not expressly stated, of foreclosing the mortgage. The complainants dismissed their original bill, and the litigation was continued upon the issues on the cross bill. The defendants in the cross bill (the complainants here) obtained a decree dismissing the cross bill, and the trust company appealed to the supreme court of the state, where the decree of the court below was reversed, and a decree entered for the foreclosure of the trust deed; ^[1] and McMillan, the clerk of that court, was appointed to make sale of the property to satisfy the complainants' debt. He was proceeding to make the sale when the complainants filed this bill in the same original state court to enjoin that sale. In their bill they characterize it as an 'original bill, in the nature of a bill of review, to impeach, and set aside said former decree, for fraud. ' In the brief of the complainants' counsel upon this motion, it is said: 'The complaint is of irregularity alleged to have occurred in the course of a proceeding in the state court, and the prayer is to enjoin the execution of a decree in the supreme court, and to set aside and reverse the decree. ' The parties made defendants by the bill are the trust company, Jarvis, Conklin, Smith, McMillan, and certain persons alleged to have been appointed receivers of the trust company in some circuit court of the United States, in some state other than Tennessee, but in what state or in what suit is not stated. The facts constituting the alleged fraud of the trust company in procuring the decree in the supreme court of the state, and such further facts as show the rights and interests of the complainants in the subject-matter of the suit entitling them to file their bill, are stated in the detail. The complainants are citizens of Tennessee. The defendants are citizens of other states, excepting Smith and McMillan, who are citizens of Tennessee. The defendant Smith appeared, and answered that he was acting as agent, with no interest in the subject-matter, and admitting that his appointment as trustee was illegal and void. Thereupon the defendants other than Smith and McMillan filed their petition in the state court for a removal of the cause into the United States circuit court for the proper district, and filed also a proper bond. The suit was removed in due form.

It is contended in support of the motion that this suit is to be treated as a mere continuance of the former suit, and, in substance and effect, a part of it, and not an independent original suit; and the cases of Jackson v. Gould, 74 Me. 564; Ranlett v. Lead Co., 30 La.Ann. 56; Manufacturing Co. v. Sprague, 76 Me. 53; Mr. Justice Brown, in Wolcott v. Mining Co., 43 F. 821; Johnson v. Waters, 111 U.S. 640, 4 Sup.Ct. 619; Cates v. Allen, 149 U.S. 451, 13 Sup.Ct. 883, 977; American Ass'n v. Hurst, 7 C.C.A. 602, 59 F. 1; and Dill. Rem. Causes, Sec. 70,-- are cited to show that in a proceeding which is a mere graft upon the principal litigation, or a continuance of it, having a thread of vital connection with the main case pending in a state court, a federal court has no jurisdiction to interfere by taking cognizance of it. That doctrine is admitted, but, in my opinion, this is not such a case. There is no remittitur of the first suit from the supreme court of Tennessee to the court of first instance for the purpose of further proceedings. The supreme court entered a final decree, and appointed its own official to execute it. The original court had entirely lost control of the case. It was not longer pending there. It had no power to review the decree. The only place where that could be done, if at all, was in the court which had rendered it. Hurt v. Long, 90 Tenn. 448 16 S.W. 968. The only possible aspect of this bill upon which the state court had...