Crutcher v. Joyce, 2612.

Citation134 F.2d 809
Decision Date21 April 1943
Docket NumberNo. 2612.,2612.
PartiesCRUTCHER et al. v. JOYCE et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

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J. M. Hervey, of Roswell, N. M., and James W. Crutcher, of Nashville, Tenn. (Jack P. White, of Nashville, Tenn., and Hervey, Dow, Hill & Hinkle, of Roswell, N. M., on the brief), for appellants.

George L. Reese, Jr., of Carlsbad, N. M. (James W. Stagner, of Carlsbad, N. M., on the brief), for appellees J. F. Joyce et al.

Caswell S. Neal, of Carlsbad, N. M., for appellee Ella Joyce.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

BRATTON, Circuit Judge.

This case bears the label of a family controversy. Mattie Joyce Crutcher, Docia Joyce White, and James W. Crutcher, only child of Mattie Joyce Crutcher, were plaintiffs in the court below; and J. F. Joyce, individually and as trustee for Mattie Joyce Crutcher, Docia Joyce White, and James W. Crutcher, Ella Joyce, J. F. Joyce as trustee for Ella Joyce, the children of J. F. Joyce and their respective spouses, and National Livestock Company, a corporation controlled by J. F. Joyce, were defendants. Reference will be made to Mattie Joyce Crutcher as Mattie, Docia Joyce White as Docia, Ella Joyce as Ella, and Mary Joyce Cox — not a party — as Mary.

The complaint was quite voluminous, covering more than sixty pages in the record. It alleged these facts. John R. Joyce and J. A. Joyce were brothers. The former resided at Carlsbad, New Mexico, amassed a fortune there, and died in 1916. The latter resided in Tennessee, and died in 1932. He had one son and four daughters, J. F. Joyce, Mattie, Docia, Ella, and Mary. J. F. Joyce came to New Mexico, became associated with John R. Joyce in business, and was a co-administrator of his estate. J. A. Joyce inherited a substantial sum from his deceased brother, and thereafter placed substantially all of it in the hands of his son J. F. Joyce, as agent, to be invested and administered. In the early part of 1920, the father indicated a desire to divide a large part of his property among his children, excluding Ella. He was then about seventy-six years of age, virtually blind, and otherwise infirm; and J. F. Joyce was about fifty, Docia about forty-seven, Mattie about forty-five, and James W. Crutcher about twelve years of age, respectively. J. F. Joyce advised his father that the funds were invested but that he would attempt to carry out his wishes. He evaluated the properties of his father at $183,732.08, and he and Mary received their shares. The shares of Mattie and Docia were placed in separate trusts. J. F. Joyce was named trustee in each instance. In the case of Mattie, the corpus of the trust estate consisted of a promissory note in the sum of $38,433.02, signed by Tilden A. Joyce, wife of J. F. Joyce; and in the case of Docia the corpus of the trust estate consisted of two notes, one for $36,666.68, signed by Tilden A. Joyce, and the other for $1,766.34, signed by J. F. Joyce.

An estrangement existed between J. A Joyce and Ella, but they became reconciled; and in 1922, he decided to make provision for her. He accordingly demanded that the four other children each contribute $5,000 to be placed in a trust fund for her benefit. Instead of making such contribution to the trust, Mary paid the amount direct to her sister. The three remaining children each contributed the required sum which became the subject matter of the trust. No money passed, the transaction being handled by J. F. Joyce charging Mattie and Docia each on the books with $5,000 and crediting the Ella trust with $15,000. J. F. Joyce was named trustee for Ella also. In 1927, the father decided to make further provision for Ella and called on the other four children each to contribute an additional sum of $3,412.50. Mary delivered to J. F. Joyce certain shares of stock as her contribution, and the contributions by Mattie and Docia were effected by debit and credit entries in the books of the trust estates. J. A. Joyce executed a trust instrument reciting that he had placed with J. F. Joyce as trustee for the benefit of Ella four described notes aggregating more than $29,000, three signed by Tilden A. Joyce and one by J. F. Joyce, and the stock which Mary had contributed; and J. A. Joyce, by Docia, J. F. Joyce, Mattie, Docia, and Ella executed a separate instrument reciting that the instrument creating the first trust for Ella be cancelled and the second substituted for it, directing that the trustee make the proper charges in the trust accounts to effect the transfer of the additional sums, and approving his acts in making the transfers. The first trust for Ella provided that if she should die without issue, the trust should be immediately closed and the fund divided equally among those creating it, and if she should die with issue the fund should become the property of the issue. Strikingly different, the second provided that in the event of the death of Ella before that of her father, the trust should continue in force during the joint lives of the settlor and the trustee, with the net income to the settlor for his support and maintenance, and in the event of the death of the settlor before that of the trustee, the entire fund should vest in J. F. Joyce absolutely; and that in the event of the death of the settlor before that of Ella and the trustee, the trust should remain in force so long as they both should live, and then if Ella should die first, the fund should vest in J. F. Joyce absolutely. J. F. Joyce prepared all of the several trust instruments, and the settlor executed them in Tennessee.

J. F. Joyce failed to account for all the property which he received from the estate of his uncle, failed to account for all the money and property which his father entrusted to him as agent, and mismanaged the trust estates of Mattie and Docia; as the result of such mismanagement and breaches of trust, he and the other defendants profited; and they received and hold property in which plaintiffs have an interest. Broadly stated, the relief sought was an accounting and the imposition of an equitable trust on such property.

On motion of the defendants, the court dismissed the causes of action insofar as they were asserted by plaintiff James W. Crutcher; dismissed the complaint as to the defendants Ella and J. F. Joyce as trustee for Ella, insofar as it sought to attack or reform the trust for her benefit; struck from the complaint all allegations relating to transactions antedating the creation of the several trusts; and ordered the filing of an amended complaint with the stricken allegations omitted. The appeal was from that order. The amended complaint was filed and the case stands on the docket of the court below for trial on all the issues tendered, except those eliminated by the order.

The jurisdiction of this court is questioned on the ground that the order is not one from which an appeal will lie. With certain exceptions not pertinent here, our jurisdiction is limited to review by appeal of final decisions. Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478; Hunt v. United States, 10 Cir., 53 F.2d 333; Dye v. Farm Mortgage Investment Co., 10 Cir., 70 F.2d 514; Demulso Corporation v. Tretolite Co., 10 Cir., 74 F.2d 805. But Rule of Civil Procedure 42(b), 28 U.S.C.A. following section 723c, provides that the court may in furtherance of convenience order a separate trial of any claim or separate issue, or of any number of claims or issues; and Rule 54(b) provides in substance that where more than one claim for relief is presented, the court may determine the issues material to a particular claim and enter a separate judgment disposing of it, and that the action shall proceed as to the remaining claims. Plaintiff James W. Crutcher asserted that he had a beneficial interest in the Crutcher trust and was therefore a proper party plaintiff. Whether he had such an interest was an issue separate and distinct from all other issues in the case. The court determined that issue, holding that he had no such interest; and the order dismissing the action as to him completely determined and adjudicated his asserted rights against all defendants. Such an order is a final decision for purposes of appeal. Reeves v. Beardall, supra.

Similarly, the cause of action against Ella and J. F. Joyce as trustee for her, relating to the trusts for her benefit, was entirely separate and distinct from the other causes of action alleged in the complaint. And the causes of action based on the alleged failure of J. F. Joyce to account for property belonging to the estate of his uncle, and that for his failure to account for money and property which his father entrusted to him as agent, were completely unrelated to the other causes pleaded. The provision in the order of dismissal relating to the cause of action against Ella and J. F. Joyce as trustee for her merely dismissed the complaint — not the action; and the provision relating to the causes of action for failure to account for the money received from the estate and for failure to account for that received as agent merely provided that all allegations in respect of transactions antedating the creation of the various trusts be stricken. Ordinarily an order dismissing a complaint in whole or in part, not followed by an express election of plaintiff to stand on the pleading and then an order dismissing the action, is nonappealable. Missouri & Kansas Interurban Ry. Co. v. City of Olathe, 222 U.S. 185, 32 S.Ct. 46, 56 L.Ed. 155; Dyar v. McCandless, 8 Cir., 33 F.2d 578; Riverside Oil & Refining Co. v. Dudley, 8 Cir., 33 F.2d 749. Where a demurrer or motion to dismiss the complaint is sustained and the complaint dismissed in whole or in part, and plaintiff does not desire to amend, he should announce his election to stand on his pleading, let a final order or judgment be entered dismissing the action, and then...

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