Fiske v. State of Missouri

Citation62 F.2d 150
Decision Date17 January 1933
Docket NumberNo. 9428.,9428.
PartiesFISKE et al. v. STATE OF MISSOURI et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

G. A. Buder, Jr., of St. Louis, Mo. (O. E. Buder, of St. Louis, Mo., on the brief), for appellants.

Henry H. Stern, Sp. Asst. Atty. Gen. (Stratton Shartel, Atty. Gen., and Richmond C. Coburn, Sp. Asst. Atty. Gen., on the brief), for appellees.

Before STONE, KENYON, and VAN VALKENBURGH, Circuit Judges.

STONE, Circuit Judge.

Ehrhardt D. Franz left a testate estate to his wife, Sophie, and their ten children. A portion thereof later passed into a trust with the same persons as beneficiaries. Extended litigation developed, wherein three and one-third of the ten interests represented by the children were arrayed against Sophie, the trustees, and six and two-thirds of the children interests. The history, issues, and results of that litigation are set forth in opinions in the various appeals to this court.1 For the present, it is helpful to note only that the litigation determined the interests of all parties to the trust to be (as far as pertinent here) that Sophie Franz had a life interest in the income from the trust which would terminate at her death and then the corpus be distributable by the trustees to the other beneficiaries. This applied to shares of stock of the Burroughs Adding Machine Company which were the main part of the trust estate. Sophie Franz died. Various of the beneficiaries have moved for distribution of the trust estate. The testate estate of Sophie is in course of administration in a probate court of Missouri. The state is entitled to collect inheritance taxes upon the estate of Sophie passing to her devisees. The appellants here represent five of the six and two-thirds children interests, and were some of the defendants in this litigation, and all are nonresidents of Missouri.

Claiming that these six and two-thirds interests in the Burroughs stock held in the trust estate were subject to inheritance taxes as part of the estate of Sophie, that they had not been inventoried in her estate, and that the state had a lien thereon for such taxes, the state was given leave to intervene in this litigation. It filed its petition in intervention wherein it prays that a portion of this stock be transferred from the trustees to the court registry to secure the inheritance taxes thereon and be held "until it may be determined in the Probate Court of the City of St. Louis whether such stock should have been inventoried therein" as part of the Sophie Franz estate.

Shortly after the petition in intervention was filed, the representatives of five of the above six and two-thirds children interests filed their "Ancillary and Supplemental Bill of Complaint for an Injunction." This bill was directed at "the State of Missouri, Stratton Shartel, Attorney General of the State of Missouri, Franklin Miller, Circuit Attorney of the City of St. Louis, State of Missouri, Richmond C. Coburn and Henry H. Stern" — the last two being attorneys for the state in connection with inheritance taxes in the Sophie Franz estate. This bill alleged that the state and the other parties, as its attorneys, had caused to be served on the executor of the Sophie Franz estate a citation from the probate court intended to discover and have inventoried as a part of such estate the Burroughs stock in the trust estate belonging to them; that such action was contrary to the decree of the trial court adjudging them entitled to receive this stock from the trustees; and that the respondents would attempt to obtain orders in the probate court which would be "adverse and prejudicial to the rights and interests of the above named plaintiffs in this cause in this Court and orders, decrees and judgments which will prejudicially affect, impair and defeat the jurisdiction of this Honorable Court and the decree rendered by it in the premises." The prayer for restraint was from "directly or indirectly prosecuting further the said citation * * * and particularly from seeking or obtaining any order, decree or judgment therein until the further direction of this Honorable Court," and for temporary relief.

Thereafter the state, specially appearing, filed its motion to dismiss the ancillary and supplemental bill on the grounds that it failed to state facts warranting the relief; that it was an action against the state which had not consented to be sued, in violation of the Eleventh Amendment; that it sought to enjoin proceedings in a state court, in violation of section 265 of the Judicial Code (28 USCA § 379), and sought to interfere with the proper administration of an estate in the state probate court.

The trial court sustained the motion on the ground that the Eleventh Amendment prevented the action without the consent of the state, and that the state had neither consented nor waived its rights to such immunity. Declining to plead further, an order was entered dismissing the ancillary and supplemental bill. This appeal is from that order.

Three issues are presented on this appeal, as follows: Did the intervention proceedings constitute a waiver by the state of its immunity under the Eleventh Amendment? If no waiver, is this action within the immunity of the amendment? Is this action within the protection of section 265 of the Code?

Waiver.

The immunity from suit of a state under the Eleventh Amendment is a personal privilege which may be waived (Gunter v. Atlantic Coast L. R. Co., 200 U. S. 273, 284, 26 S. Ct. 252, 50 L. Ed. 477), and this rule is applicable to an intervention (Clark v. Barnard, 108 U. S. 436, 447, 448, 2 S. Ct. 878, 27 L. Ed. 780). The action of the state claimed by appellants to constitute a waiver is its intervention in this main case. Appellees oppose that such is not the effect of the intervention. The motion of the state for leave to intervene prayed that it be permitted so to do as "a party defendant herein." Standing alone, this would strongly suggest that the intervention was to be of a character which would constitute a waiver. This is, however, not conclusive. The petition in intervention must be examined to ascertain what right or remedy the state was seeking to obtain from the federal court. The substance of that petition is that certain stock of appellants within the jurisdiction of the federal court was claimed by the state to be derived through the estate of Sophie Franz, and therefore subject to state inheritance taxes; that the state had a lien thereon for such taxes; that the stock had not been included in the inventory of the Sophie Franz estate in the probate court; that citation of the executor to show why this stock was not included had been issued, and that matter would be determined in the probate court; that these appellants have moved for distribution to them by the federal court. On the situation thus set out, the prayer is that a portion of this stock be transferred from the trustees to the registry of the court "to secure the assessment and collection" of the inheritance taxes, and to be there held "until it may be determined in the probate court * * * whether said stock should have been inventoried therein" by the executor of the Sophie Franz estate. The state seeks no determination of any rights or title, but expressly pleads that such determination will take place in the probate court. The only relief asked is that the federal court do not distribute this stock from the trustees to appellants, but place it in its registry to abide the result of the determination of the rights of the state by the probate court. Obviously, the only purposes and possible results of the intervention would be to retain the stock within Missouri and in a place where it could be made to respond to the tax claims of the state if those claims (then being pressed in the probate court but undetermined) should be upheld. The substance of the relief sought is the temporary retention of custody by the federal court. This situation is essentially different from the statement in Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446, 452, 3 S. Ct. 292, 296, 609, 27 L. Ed. 992 (relied upon by appellants) to the effect that the rights of a state "will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court" where the state intervenes and "when she may have a lien or other claim on the property" in the custody of the court. That language had reference to instances where the state seeks to have its lien or claim established and enforced in the federal court having the property affected thereby. Such a case was Clark v. Barnard, 108 U. S. 436, 2 S. Ct. 878, 27 L. Ed. 780, where the state intervened to prosecute a claim to the fund in the custody of the federal court. Here the state is not seeking any such relief, but expressly disavowing it. We are not concerned on this appeal with the propriety of permitting the intervention or with its legal classification (as pro interesse suo or otherwise). The only present pertinency of the intervention is whether it is that character of appearance in the main litigation as will work a waiver of the immunity of the amendment. Here the only thing sought is the temporary impounding of this stock, so that it may, possibly, be subjected to a lien which the state hopes to establish in another tribunal. Such action sought from the federal court is in no sense a matter of right, but rather partakes of grace. No right of the state is sought to be presented to or determined by the federal court. We think this limited character of appearance in a federal court by a state cannot be regarded as a waiver of the immunity given by the amendment.

Interference with Federal Jurisdiction.

The basis of appellants' bill is that the respondents are seeking to invade the exclusive jurisdiction of the federal court and affect the decrees therein injuriously to their...

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8 cases
  • In re Buder
    • United States
    • United States State Supreme Court of Missouri
    • January 7, 1949
    ......796 In re G. A. Buder and Oscar E. Buder No. 40277 Supreme Court of Missouri January 7, 1949 . [217 S.W.2d 564] . .          . Rehearing Denied February 14, ... clients in the "Trustees Commission" matter. Buder v. Franz, 27 F.2d 101; Fiske v. Buder, 125 F.2d 841. (3) G. A. Buder and Oscar E. Buder. were guilty of unethical conduct in ...A. Buder and Oscar E. Buder, to practice law in the State of. Missouri, shall be suspended for a period of one year from. the effective date of the ......
  • In re Franz' Estate
    • United States
    • United States State Supreme Court of Missouri
    • December 3, 1940
    ...in the cases of In re Franz Estate, 344 Mo. 510, 127 S.W.2d 401; Franz v. Buder, 11 F.2d 854; Buder v. Franz, 27 F.2d 101; Fiske v. State of Missouri, 62 F.2d 150. In two latter cases the Federal court decided that each of the ten children had a vested remainder in the trust estate. The tru......
  • In re Franz' Estate
    • United States
    • United States State Supreme Court of Missouri
    • April 20, 1939
    ...a Statute of Missouri) requires that full "faith and credit" be given here to the "judicial proceedings" in the Federal forum. Fiske v. State of Mo., 62 F.2d 150; Fiske v. State of Mo., 69 F.2d 683; U.S. Art. IV, sec. 1; R. S. U.S. sec. 905; Davis v. Davis, 83 L.Ed. 56; In re Estate of Thom......
  • Fiske v. Buder
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 13, 1942
    ...Mississippi Valley Trust Co. v. Buder, 8 Cir., 47 F.2d 507; Mississippi Valley Trust Co. v. Franz, 8 Cir., 51 F.2d 1047; Fiske v. State of Missouri, 8 Cir., 62 F.2d 150; Wallace v. Franz, 8 Cir., 66 F.2d 457; Wallace v. Franz, 8 Cir., 68 F.2d 313; Fiske v. State of Missouri, 8 Cir., 69 F.2d......
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