City of Eufaula, Alabama v. Pappas

• Decision Date: 22 January 1963
• Docket Number: Civ. A. No. 1861-N.
• Parties: The CITY OF EUFAULA, ALABAMA, a Municipal Corporation, Plaintiff, v. Gregory H. PAPPAS et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

213 F. Supp. 749

The CITY OF EUFAULA, ALABAMA, a Municipal Corporation, Plaintiff, v. Gregory H. PAPPAS et al., Defendants.

Civ. A. No. 1861-N.

United States District Court M. D. Alabama, Northern Division.

January 22, 1963.

Archie I. Grubb (of Grubb & LeMaistre), Eufaula, Ala., for plaintiff.

George B. Azar (of Azar & Campbell), Montgomery, Ala., and Christie G. Pappas, Eufaula, Ala., for defendant Zafero P. Paterson.

JOHNSON, District Judge.

In this case, the City of Eufaula instituted condemnation proceedings in the Probate Court of Barbour County, Alabama, seeking to condemn for public use certain described property in the City of Eufaula, Barbour County, Alabama; said tract which the City is attempting to condemn contains 35.9 acres and is particularly described by the use of distances and degrees in the condemnation complaint. The authority by which the City is proceeding to condemn said land is set out in Title 37 of the Code of Alabama, Recompiled 1958. Insofar as the Probate Court is concerned, the proceedings are authorized in Title 19 of the Alabama Code. In this case, the City commenced its action on October 22, 1962. On November 9, 1962, Zafero P. Paterson, one of the defendants named by the City in the condemnation proceeding, filed her petition for removal of said action from the Probate Court of Barbour County, Alabama, to this court. The removal to this court was upon the theory of diversity and the amount in controversy, with the removing defendant claiming to be a citizen of the State of New Jersey and further claiming that the action by the City of Eufaula as to her is entirely separate and independent from the City's action against the other named defendants. The removing party further claims that she is the sole owner of the fee simple title of the land "a part of which is described in the application for condemnation." On November 26, 1962, the City of Eufaula filed its motion to remand this cause to the Probate Court of Barbour County, Alabama, and assigns as grounds for remand collusion on the part of the removing defendant and certain other members of her family in order to confer jurisdiction on this court, lack of diversity in that the Alabama Power Company, an Alabama corporation, and the heirs of John Lingard Hunter claim some interest in the tract of land under consideration and are indispensable parties to the action, and that at least six of said heirs are resident citizens of the State of Alabama.

The submission of this matter is upon the pleadings, the testimony taken orally before the Court, and the briefs and arguments of the parties. Upon this submission, it appears, in addition to the facts above recited, that on October 19, 1962, the Pappas Enterprises, Inc., and approximately eleven other members of the Pappas family, all being joint owners and tenants in common of practically all the land being condemned, quitclaimed their interest in said land to Zafero P. Paterson, a daughter and sister of the grantors. It was acknowledged by certain of the grantors, who testified before this Court in the matter, that the reason for the transfer to Zafero P. Paterson was to create diversity and thus confer jurisdiction on this court. It was further acknowledged that there was an understanding between the grantors and Zafero P. Paterson that whatever sum was awarded in this condemnation proceeding, she was to divide it among the grantors in proportion to their respective interests when they made the conveyance to her on October 19, 1962. The evidence further reflected that the transfer was complete, with no power remaining in the grantors to compel a reconveyance to them. The evidence further reflected that the Alabama Power Company has a fifty-foot easement across the property being condemned and that there is located within this easement tract a power line and certain power poles which were erected by and are now being maintained by the Alabama Power Company. The Court further finds that a part of the tract of land being condemned (from ½ to ¾ of an acre) is claimed by the heirs of John Lingard Hunter. The testimony is without dispute that the land claimed by these heirs has not been separated by the condemnors in their condemnation complaint, but could probably be definitely carved out by the taking of testimony and the establishment of land lines. These "Hunter heirs" claim an interest in the property being condemned and claim a share of the money to be awarded as just compensation in this case. As stated above, at least six of these Hunter heirs are citizens of the State of Alabama.

That part of the motion of the City of Eufaula contending that this Court has no jurisdiction because of the collusive transfer by the members of the Pappas family to Zafero P. Paterson is without merit. The theory of the City, in this respect, is based upon Title 28, § 1359, United States Code Annotated, wherein it is stated, "A district court shall not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively made or joined to invoke the jurisdiction of such court." While it is true that the consideration for the transfer to Zafero P. Paterson was the sum of $1, this under the law of Alabama suffices to support the transfer. Crosby v. Baldwin County, 227 Ala. 122, 148 So. 814; Young v. Bloak, 261 Ala. 542, 74 So.2d 910; and Stewart v. Stewart, 171 Ala. 485, 54 So. 604. The movant places much emphasis upon the fact that the deed was collusively made and that after the award Zafero P. Paterson was simply to divide the proceeds according to the former interests of ...