EK Carey Drilling Co. v. Murphy, Civ. No. 3139.
| Decision Date | 23 June 1953 |
| Docket Number | Civ. No. 3139. |
| Citation | 113 F. Supp. 226 |
| Parties | E. K. CAREY DRILLING CO. v. MURPHY et al. (GOOD et al., third party defendants). |
| Court | U.S. District Court — District of Colorado |
Evart Mills, McPherson, Kan., and Henry S. Sherman, Denver, Colo., for plaintiff.
J. Corder Smith, Fort Morgan, Colo., and Paynter, Paynter & Paynter, Brush, Colo., for defendants and third party plaintiffs.
George A. Epperson and Donald F. McClary, Fort Morgan, Colo., for third party defendant Howard Good.
C. H. Anderson, Brush, Colo., for third party defendant Fred Foos.
This matter is presently before this Court upon the motions of third party defendants Howard Good and Fred Foos to dismiss the third party complaint, and upon the motion of Good for summary judgment. The grounds for the motion for dismissal of the third party complaint are that the removal of the original party plaintiff from the proceeding as the alleged result of a judgment hereinafter mentioned, eliminates any diversity of citizenship from this action, for at the time of the commencement of this action and at the time of the filing of the subsequent pleadings which resulted in the third party aspect of this action, the only diversity of citizenship which gave this Court jurisdiction existed between the party plaintiff and the original defendants, and at that time no diversity of citizenship existed between the original defendants (now third party plaintiffs) and the third party defendants.
The rule is well settled that if jurisdiction is lacking, a federal district court has a mandatory duty to dismiss the matter upon motion. See Emmons v. Smitt, D.C., 58 F.Supp. 869, affirmed 6 Cir., 149 F.2d 869, certiorari denied 326 U.S. 746, 66 S.Ct. 59, 90 L.Ed. 446.
Indeed, where the federal court is without jurisdiction, it is improper to make any order in the cause except to dismiss the suit. See New Orleans & Bayou Sara Mail Co. v. Fernandez, 12 Wall. 130, 20 L.Ed. 249.
The pleadings in the instant cause show that upon stipulation between the plaintiff and the original defendants a judgment has been entered herein which finally resolves all issues between the plaintiff and the original defendants and dismisses the plaintiffs from this action. This stipulation specifically provided that the rights of the original defendants (the third party plaintiffs) against the third party defendants were not to be affected by the stipulation. It was following this stage that the third party defendants interposed the present motion to dismiss.
The question raised by the motion to dismiss in the present factual situation and development of the pleadings is one of interest, but does not present a question of first impression. It was previously passed upon in State of Maryland to Use and Benefit of Wood v. Robinson (Oursler et al., Third Party Defendants) D.C., 74 F.Supp. 279, 281, wherein in a very comprehensive and well-reasoned opinion covering all available precedents and analogies that Court held:
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Seaboard Finance Company v. Davis
...cert. denied, 338 U.S. 850, 70 S.Ct. 93, 94 L.Ed. 520 (1949); Hagen v. Payne, 222 F.Supp. 548 (W.D.Ark.1963); E. K. Carey Drilling Co. v. Murphy, 113 F.Supp. 226 (D. Colo.1953). The court must dismiss, although the plaintiff may be able to reinstitute the This suit was filed on May 25, 1967......
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Lang v. Windsor Mount Joy Mut. Ins. Co., Civ. A. No. 80-0983.
...9 (1969), 28 U.S.C. § 1359, Houston v. Astle, 435 F.2d 847 (3d Cir. 1970). 19 222 F.Supp. 548 (W.D.Ark.1963). 20 Id. at 553. 21 113 F.Supp. 226 (D.Colo.1953). 22 Id. at 23 174 F.2d 473 (4th Cir. 1949). 24 Id. at 473. See also Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d 954 (5th Cir. 19......
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Dery v. Wyer
...209 F.2d 204;4 State of Maryland to Use and Benefit of Wood v. Robinson, D.C.D.Md., 74 F.Supp. 279, 281-282; E. K. Carey Drilling Co. v. Murphy, D.C.D.Colo., 113 F.Supp. 226. In other cases, the court in the exercise of its discretion has retained jurisdiction. Oakes v. Graham Towing Co., D......
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Opelika Nursing Home, Inc. v. Richardson
...v. Combs, E.D.Ky.1960, 183 F.Supp. 705. Any order in contravention of this course of action was improper. See E. K. Carey Drilling Co. v. Murphy, D.Colo., 1953, 113 F.Supp. 226. For the foregoing reasons the judgment of the district court is reversed and the cause is remanded for further pr......