Fouke v. Schenewerk, 13860.

• Decision Date: 18 June 1952
• Docket Number: No. 13860.,13860.
• Citation: 197 F.2d 234
• Parties: FOUKE et al. v. SCHENEWERK et al.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 234 (1952)

FOUKE et al. v. SCHENEWERK et al.

No. 13860.

United States Court of Appeals Fifth Circuit.

June 18, 1952.

Will Steel, Frank S. Quinn, Texarkana, Ark., C. M. Kennedy, Texarkana, Tex., for appellants.

C. C. Renfro, Dallas, Tex., for appellee.

Before HOLMES, BORAH, and RIVES, Circuit Judges.

HOLMES, Circuit Judge.

This suit was filed by the appellees against appellants "as an action in trespass to try title and as an action for declaratory judgment," as stated in the complaint of the plaintiffs below, appellees here. They prayed for the recovery of all the surface and one-half the mineral rights to a tract of land in Texas, and for such other and further relief as they were entitled to in the premises. Federal jurisdiction of the controversy depended solely upon diversity of citizenship between the parties; the amount involved was alleged to be over three thousand dollars, exclusive of interest and costs.

The complaint alleged that both plaintiffs were citizens of Texas; but as to the defendants, the allegation was that "each of them resides in the State of Arkansas." It is apparent from affidavits and other portions of the record, however that some of the defendants were citizens of Texas and others were citizens of Arkansas. Consequently, the court had no jurisdiction of the controversy at the time judgments by default were taken against some of the appellants. There is also considerable doubt about the validity of the service of process on the non-resident defendants, one of whom was a minor, Jennings v. Johnson, 5 Cir., 148 F. 337; but, since the court was without jurisdiction of the subject matter, we need not pass upon the validity of the process on the non-resident defendants.

While a motion to set aside said judgment by default was pending before the court, the motion of the plaintiffs to dismiss as to several defendants, who were citizens of Texas, was sustained, and a so-called corrected default judgment rendered as to them, which amended judgment eliminated the citizens of Texas as defendants therein and dismissed them as parties to the litigation.

In their motion to dismiss as to Richard Lee Fouke, a minor, plaintiffs said that they had no knowledge of his being a minor at the time he was made a party to this suit; as to the other Texas citizens who were originally made parties-defendants, they claimed that they were inadvertently made parties, and prayed that each of them be dismissed and "that the judgment be corrected to show that it does not affect their interest, if any." This motion was sustained by an order which, among other things, said that "their rights, if any, in the subject matter of this suit shall not be prejudiced by such amended judgment." Nevertheless, in the judgment under review on this appeal, the court found that the real estate and one-half of the minerals described in the complaint were the property of the plaintiffs, and rendered a declaratory judgment to that effect. The judgment further provided as follows: "The plaintiffs will be entitled to copies of this judgment as a muniment of title upon the payment by them to the Clerk of the fee for certified copies."

Doubtless the plaintiffs below were confronted by a dilemma. They were not seeking to cancel the deed, but to construe and validate it. They knew who were the interested parties, and joined them as defendants, but they were mistaken in thinking that some of them were not permanently residing in Texas. When it developed that some of them were citizens of Texas and that the court below had no substantive jurisdiction of the controversy (although it had entered a default judgment...