Evangelical Lutheran Church v. Stanolind Oil & G. Co.

• Decision Date: 03 January 1958
• Docket Number: No. 15707,15708.,15707
• Citation: 251 F.2d 412
• Parties: EVANGELICAL LUTHERAN CHURCH, a corporation, Appellant, v. STANOLIND OIL AND GAS CO., a corporation; Ernest Briggs; F. B. Williams; Billings County, North Dakota, a corporation; W. G. Gooding; George Heaton, Inc., a corporation, and All Other Persons Unknown Claiming Any Estate or Interest in or Lien or Encumbrance Upon the Property Described in the Complaint, Appellees. EVANGELICAL LUTHERAN CHURCH, a corporation, Appellant, v. The OHIO OIL CO., a corporation; W. H. Glendenning; Hugh J. Gillespie; F. H. Ely; Fuller-Potter Lumber Co.; C. Pederson; H. S. Herrick; Billings County, North Dakota, a corporation, and All Other Persons Unknown Claiming Any Estate or Interest in or Lien or Encumbrance Upon the Property Described in the Complaint, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

251 F.2d 412 (1958)

EVANGELICAL LUTHERAN CHURCH, a corporation, Appellant, v. STANOLIND OIL AND GAS CO., a corporation; Ernest Briggs; F. B. Williams; Billings County, North Dakota, a corporation; W. G. Gooding; George Heaton, Inc., a corporation, and All Other Persons Unknown Claiming Any Estate or Interest in or Lien or Encumbrance Upon the Property Described in the Complaint, Appellees.

EVANGELICAL LUTHERAN CHURCH, a corporation, Appellant, v. The OHIO OIL CO., a corporation; W. H. Glendenning; Hugh J. Gillespie; F. H. Ely; Fuller-Potter Lumber Co.; C. Pederson; H. S. Herrick; Billings County, North Dakota, a corporation, and All Other Persons Unknown Claiming Any Estate or Interest in or Lien or Encumbrance Upon the Property Described in the Complaint, Appellees.

Nos. 15707, 15708.

United States Court of Appeals Eighth Circuit.

January 3, 1958.

Frank F. Jestrab, Williston, N. D. (Harry M. Pippin and Bjella, Jestrab & Neff, Williston, N. D., were with him on the brief), for appellant.

William R. Pearce, Bismarck, N. D. (Cox, Pearce & Engebretson, Bismarck, N. D., T. J. Files, J. W. Gee, V. C. McClintock, Casper, Wyo., J. B. Sandlin, Tulsa, Okl., and H. A. Thompson, Casper, Wyo., were with him on the brief), for appellees.

Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Plaintiff, an incorporated resident of Minnesota, commenced these two cases in North Dakota state District Court as actions to quiet title to certain real properties situated in Billings County, North Dakota. Defendants herein were variously identified as residents of the States of Delaware, Ohio, Minnesota, and North Dakota. No showing has been made as to the residence of certain other named defendants or of any unknown defendants claiming any estate or interest in or lien or encumbrance upon the property described in the complaints. Only Stanolind Oil and Gas Company, a Delaware corporation, appeared and answered as a defendant in No. 15,707. Similarly, The Ohio Oil Company, an Ohio corporation, was the sole appearing and answering defendant in No. 15,708.

The complaints were in the short statutory form set forth in Section 32-1704, N.D.R.C.1943. In substance, they allege that the plaintiff is the owner of the real estate described, that the defendants have certain claims which are inferior to plaintiff's title, and plaintiff asks that the defendants be required to set forth their claims and that the same be declared null and void, that the titles be quieted as to such claims and that plaintiff recover possession of the premises described. The defendants Ohio Oil and Stanolind Oil (appellees herein) each answered in the case in which it was involved, admitting that the plaintiff had an estate or interest in the property described, subject, however, to leasehold interests owned by each defendant under leases give by the plaintiff to them, copies of which were attached and made part of the answers. Other defendants did not appear or answer. Hereafter reference to "defendants" will accordingly mean only Ohio Oil and Stanolind Oil unless otherwise indicated.

Plaintiff replied in each action, admitting that the defendants were the holders of valid oil and gas leasehold rights but denying that said leases extended to all other minerals in the land. Plaintiff asked in each case that the claims of the defendants in and to all minerals in the lands except such as are or may be withdrawn from an oil and gas well in ordinary operation be declared null and void and only a cloud on the title and that the said cloud be removed by decree of court. These two defendants thereupon filed petitions for removal of the cases to the United States District Court for the District of North Dakota on the grounds that the plaintiff's claims against the oil company defendants were claims or causes of action separate and independent from plaintiff's claims against the other named but non-appearing defendants and that such facts were first disclosed by the plaintiff's replies, and that hence these defendants were entitled to remove to the federal court. Removal was effected under 28 U.S.C.A. § 1441(c). Plaintiff then moved to remand the cases to state court. Such motions were denied. The cases were consolidated for trial pursuant to Rule 42 (a), Fed.Rules of Civ.Proc., 28 U.S.C.A. On trial, the cases were decided against the plaintiff and in favor of the two defendants who removed and judgments were entered accordingly. These appeals followed. The parties will be referred to as in the District Court.

Plaintiff's first claim is that the court erred in denying plaintiff's motion to remand the cases to the state court.

Plaintiff contends that the removal proceedings were not commenced within the statutory 20 days after service of the complaints. It would have removability determined from a consideration of the complaints alone. It cites American Fire & Cas. Co. v. Finn, 1951, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702, 19 A.L.R.2d 738. In that case, the Supreme Court did say, at page 14 of 341 U.S., at page 540 of 71 S.Ct., in concluding that that case did not involve a "separate and independent claim or cause of action":

"In making this determination we look to the plaintiff\'s pleading, which controls."

There is, however, nothing in the opinion which justifies the conclusion that the Supreme Court was restricting the term "plaintiff's pleading" to the complaint alone, unless the complaint was the only pleading filed by plaintiff. Plaintiff also cites Preas v. Phebus, 10 Cir., 1952, 195 F.2d 61. In that case, the defendants did not remove to federal court until answers to interrogatories had been served which the trial court held justified, for the first time, the conclusion that a separate and independent, and therefore removable, cause of action was joined with a non-removable cause. The Court of Appeals reversed, determining that no separate and independent claim was presented between the plaintiff and the removing parties. In so doing, that court used language which, standing alone, might support plaintiff's contention. We think, however, it is quite obvious that the Court of Appeals for the 10th Circuit did not mean to limit the question of removability to a consideration of the complaint alone where there were subsequent pleadings. By its later decision in the case of McLeod v. Cities Service Gas Co., 10 Cir., 1956, 233 F.2d 242, at page 245, that court holds contra:

"The appellants\' reply did not purport to change or restate the asserted cause of action, but it was a `pleading\' or `other paper\', and if it reshaped the stated claims in a manner to make removability for the first time ascertainable, the petition is indeed timely."

Such statement is in conformity with 28 U.S.C.A. § 1446(b). Inasmuch as removability first became apparent upon service of plaintiff's replies, we hold that the petitions for removal were timely.

28 U.S.C.A. § 1441(c), 62 Stat. 937, under which removal was effected herein, provides:

"(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction."

Diversity of citizenship exists between the plaintiff and these defendants and there appears no question as to involvement of the statutory amount. Accordingly, we must determine whether the causes of action existing between plaintiff and these defendants were "separate and independent".

The actions began as ones to quiet title to real property in which it was alleged by plaintiff that the defendants claimed "certain estates or interests in or liens or encumbrances upon * * *" the land involved and asked that the same be declared and adjudged null and void. It was not until plaintiff's replies that the real nature of the controversy between these parties became apparent. Therein it was admitted that the defendants had an interest in the land which should not be declared null and void, but it was asked that the contracts out of which the interests arose be construed. The controversies between these parties involved only contract construction — something separate and independent from anything else in the actions. Such controversies could be determined between plaintiff and these two defendants without the presence, in any form, of the other named defendants.

Insisting that the causes of action between the plaintiff and the two defendants here were not "separate and independent" but were merely part and parcel of single actions to quiet title in which plaintiff seeks peaceful enjoyment of possession and use of the properties, the plaintiff directed attention to the legislative purpose providing for single actions to clear title to land as enunciated by the Supreme Court of North Dakota in Sexton v. Sutherland, 1917, 37 N.D. 500, 164 N.W. 278, 280:

"The Legislature intended to afford an easy and expeditious mode of determining all conflicting claims to land, whether derived from a common source or from different or independent sources, * * * and thereby avoid a multiplicity of suits."

An action to quiet title is indeed an effective method of adjudicating title to real property as against numerous defendants having different and diverse types of claims. Nevertheless, the form of the action should not be permitted to obscure the circumstances and does not merge the separate and independent claims into one. In denying a motion to remand an action to quiet title which had been removed to the federal court under the provisions of 28 U.S.C.A. § 1441(c), the court, in Bonner v. Smith, 1953, D.C. Okl., 114 F.Supp. 895, at page 896, stated:

"Although any person whose right may cast a cloud upon a title must be included in an action to quiet

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