Donovan v. Campion

• Decision Date: 14 February 1898
• Docket Number: 872.
• Citation: 85 F. 71
• Parties: DONOVAN v. CAMPION et al.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 71

DONOVAN v. CAMPION et al.

No. 872.

United States Court of Appeals, Eighth Circuit.

February 14, 1898

E. B Green and Amos Green, for appellant.

Charles J. Hughes, Jr., and Charles Cavender, for appellees.

Before SANBORN and THAYER, Circuit Judges, and PHILLIPS, District judge.

SANBORN Circuit Judge.

This suit involves one-sixth of the same mine and its products in controversy in the cases of Kelley v. Boettcher, 85 F. 55, and Curran v. Campion, 85 F. 67. It is here upon demurrers to the amended bill, and, with one exception the questions presented by these demurrers are very similar to those considered and decided in those cases. The suit was brought by the appellant James H. Donovan, to secure the cancellation of a deed which he made on April 27, 1893, to one Joseph L. Budd, of one sixth of the Little Johnny lode mining claim for the recovery of that one-sixth of the products of the mine. He filed his original bill on September 16, 1895. A demurrer was interposed to it, and sustained. The bill was amended on July 7, 1896; demurrers to the amended bill were sustained; and the suit was dismissed. The appeal challenges the decree of dismissal.

The ground of the demurrers to the bill which was not presented in the cases of Kelley v. Boettcher and Curran v. Campion is that Joseph L. Budd, the grantee in the deed which is attacked, has not been made a party to this suit. The amended bill, however, alleges that Budd is a resident of the state of Ohio; that he was a mere agent or tool of the appellees John F. Campion, A. V. Hunter, and the Ibex Mining Company for the purpose of obtaining the title to the interest of the appellant in their behalf; that the consideration for the deed was paid by the Ibex Mining Company, and not by Budd that Budd has conveyed the interest he has obtained by the deed to the Ibex Mining Company; and that he has not, and never had, any actual interest in the property. The limitation of the jurisdiction of the federal courts by the citizenship of the parties, and the inability of those courts to bring in many parties beyond their jurisdiction by publication, has resulted in a practical division of the possible parties to suits in equity in those courts into indispensable parties and proper parties. An indispensable party is one who has such an interest in the controversy or the subject-matter of the controversy that a final decree between the parties before the court cannot be made without affecting his interests, or leaving the controversy in such a situation that its final determination may be inconsistent with equity and good conscience. Every other party who has any interest in the controversy or the subject matter which is separable from the interest of the parties before the court so that it will not be immediately affected by a decree which does complete justice between them, is a proper party. Every indispensable party must be brought into court, or the suit will be dismissed. The complainant may join every proper party, and he must join every proper party who would have been a necessary party under the old chancery rule, unless his joinder would oust the jurisdiction of the court as to the parties before it, or unless he is incapable of being made a party by reason of his absence from the jurisdiction of the court or otherwise. The old chancery rule is that all those whose presence is necessary to a determination of the entire controversy must be, and all those who have an interest in the subject matter of the litigation which may be conveniently settled therein may be, made parties to the suit. The former are termed the 'necessary' and the latter the 'proper' parties. Sioux City Terminal Railroad & Warehouse Co., v. Trust Co. of North America, 49 U.S.App. 523, 530, 27 C.C.A. 73, 82 F. 124, 126; Rev. St Secs. 737, 738; Equity Rule 47; Chadbourne's Ex'rs v. Coe, 10 U.S.App. 78, 83, 2 C.C.A. 327, and 51 F. 479, 481; Shields v. Barrow, 17 How. 130, 139; Ribon v. Railroad Co., 16 Wall. 446, 450; Coiron v. Millaudon, 19 How. 113; Williams v. Bankhead, 19 Wall. 563; Kendig v. Dean, 97 U.S. 423; Alexander v. Horner, 1 McCrary, 634, Fed. Cas. No. 169; Cole Silver Min. Co. v. Virginia & Gold Hill Water Co., 1 Sawy. 685, Fed. Cas. No. 2,990. Tested by these rules, Budd was neither a necessary party under the chancery rule, nor an indispensable party, under the rule of the federal...