CITY OF HOLLIS, OKL. v. Carrell

• Decision Date: 25 November 1941
• Docket Number: 631.,617,No. 614,615,614
• Citation: CITY OF HOLLIS, OKL. v. Carrell, 42 F.Supp. 893 (W.D. Okla. 1941)
• Court: U.S. District Court — Western District of Oklahoma
• Parties: CITY OF HOLLIS, OKL., ex rel. KEARN et al. v. CARRELL et al. CITY OF HOLLIS, OKL., ex rel. GLIOT v. LONG et al. CITY OF HOLLIS, OKL., ex rel. ROCKSTROH v. CITY OF HOLLIS, OKL., et al. CITY OF HOLLIS, OKL., ex rel. STATE NATIONAL CO. v. PITMAN et al.

42 F. Supp. 893

CITY OF HOLLIS, OKL., ex rel. KEARN et al. v. CARRELL et al.

CITY OF HOLLIS, OKL., ex rel. GLIOT v. LONG et al.

CITY OF HOLLIS, OKL., ex rel. ROCKSTROH v. CITY OF HOLLIS, OKL., et al.

CITY OF HOLLIS, OKL., ex rel. STATE NATIONAL CO. v. PITMAN et al.

Nos. 614, 615, 617, 631.

District Court, W. D. Oklahoma.

November 25, 1941.

Reynolds & Ridings, of Oklahoma City, Okl., for plaintiff.

Ross Cox, C. H. Madden, J. W. Watson, R. D. Miller, and Raymond Barry, all of Hollis, Okl., Robinson & Oden, of Altus, Okl., Embry, Johnson, Crowe & Tolbert and Arnold T. Fleig, all of Oklahoma City, Okl., Stanard, Carey & Stanard and Geo. E. McKinnis, Jr., all of Shawnee, Okl., Melton, McElroy & Vaughn, of Chickasha, Okl., Otto K. Wetzel, of Dallas, Tex., and Wm. H. Zwick, of Ponca City, Okl., for defendants.

VAUGHT, District Judge.

The above-numbered cases will be considered together inasmuch as they involved paving districts in the same city, the parties for the most part are represented by the same counsel, and the questions raised are practically the same. These four cases were incorporated by specific reference to case number in the opinion of this court filed July 18, 1941, in City of Clinton, Okl., ex rel. v. First National Bank of Clinton, Okl., et al., 39 F.Supp. 909, and that opinion is incorporated herein by reference as same is applicable to the questions here involved.

Certain defendants strenuously contend that this court has no jurisdiction because the amount in controversy as to any one cause of action, or as to any one defendant, does not exceed $3,000 exclusive of interest and costs, and that the bonds sued upon do not exceed $3,000 exclusive of interest and costs.

This question has been settled by this court in other cases on the motions to dismiss, but in some of these cases it appears that motions to dismiss, attacking the jurisdiction of this court, were filed after the answers had been filed.

The defendants contend that the plaintiffs have sued upon six bonds of $500 each, which total exactly $3,000, and therefore do not exceed $3,000 as required by statute to give the federal court jurisdiction. These defendants overlook the character of these actions. The relators in the cases here involved may own exactly six $500 bonds, but that is merely coincidental. The owner of one $500 bond is privileged to bring the foreclosure action under the statute, 11 Okl.St.Ann. § 107, which provides: "Any holder of any street improvement bond * * * shall have the right to institute, in the name of the city or town, issuing such bond, an action * * * to foreclose the lien of such assessment whenever such assessment is delinquent at least for a period of twelve (12) months, * * *."

It is noted that the action is for the purpose of foreclosing the delinquent assessments, not for collecting the bonds sued upon. And later in the same section, it precludes any other bondholder from bringing suit for the collection of the same assessments, as will be noted in the quotation below.

In Service Feed Co. v. City of Ardmore, 171 Okl. 155, 42 P.2d 853, 857, the Oklahoma Court said: "The statute expressly authorizes any holder of any street improvement bond to foreclose his lien by action in the name of the city, which is, as to the collection of the assessments, trustee for all the interested bondholders. If there are other outstanding bonds of the same class which are affected by the foreclosure, the action of a single bondholder is for the benefit of himself and others similarly situated. That such action is a class suit further appears from the requirement: `Upon the institution of an action to collect delinquent and unpaid assessments in any paving district against property liable therefor, no other or further action shall be instituted and maintained to collect such delinquent assessment against said property for said year.'" (Emphasis supplied.)

These are "class" actions as announced by the Oklahoma court in the above case, and in such actions the jurisdictional amount is measured, not by the amount due to any one member of the class, nor due from any one defendant, but by the amount or fund to be recovered by the action. See Town of Fairfax, Okl., ex rel. Barringer v. Hubler, D.C., 23 F.Supp. 66; Brown-Crummer Inv. Co. v. City of Florala, Ala., D.C., 55 F.2d 238; Gibbs v. Buck, 307 U.S. 66, 59 S.Ct. 725, 83 L.Ed. 1111; Brusselback v. Arnovitz, 6 Cir., 87 F.2d 761; and the authorities cited therein. The cases cited by the defendants are not in point because they do not involve statutes such as the...