Girand v. Kimbell Milling Co.

• Decision Date: 14 January 1941
• Docket Number: No. 9600.,9600.
• Citation: 116 F.2d 999
• Parties: GIRAND v. KIMBELL MILLING CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

116 F.2d 999 (1941)

GIRAND v. KIMBELL MILLING CO. et al.

No. 9600.

Circuit Court of Appeals, Fifth Circuit.

January 14, 1941.

F. D. Brown, of Lubbock, Tex., for appellant.

H. D. Payne, Charles Kassel, and Melvin F. Adler, all of Fort Worth, Tex., for appellees.

Before SIBLEY and HOLMES, Circuit Judges, and DAWKINS, District Judge.

SIBLEY, Circuit Judge.

Girand as trustee in bankruptcy of Boothe Mill & Elevator, Inc., sued Kimbell Milling Company in the district court to recover a preference alleged to have been received in the sale of certain wheat of the bankrupt three weeks before bankruptcy. Kimbell Milling Company was also sued in a State court by and in behalf of persons claiming to own some of the wheat, alleging its conversion by the sale. Kimbell Milling Company moved to dismiss the trustee's suit as showing no cause of action and also for want of jurisdiction; and subject to that motion sought to implead the suitors in the State court as third party defendants. This latter was done, and the third party defendants, in addition to claiming the proceeds of the wheat, moved to dismiss the whole proceeding because the original plaintiff had pleaded no cause of action of which the district court had jurisdiction. There was a welter of other pleadings in disregard of the simplicity required by the Rules of Civil Procedure. It is hard to tell whether there was a pretrial hearing, a motion for summary judgment, or a trial of the motions to dismiss. Evidence was heard, especially the deposition of Joe F. Boothe, who had acted for Boothe Mill & Elevator, Inc., in the dealings with Kimbell Milling Company. The agreed narrative of the evidence recites: "On March 25, 1940, upon the motion of the third party defendants to dismiss this suit for want of jurisdiction, all matters of law and evidence were heard by the court." The judgment itself recites that there were heard, among other things the motion of Kimbell Milling Company to dismiss, and "the motion of the third party defendants challenging the jurisdiction of the court in this case"; and the conclusion announced is "that this court has no jurisdiction of said cause of action", and the whole case was dismissed without prejudice to the action in the State court.

It is the duty of the district court, with or without a motion, to dismiss an original suit or to remand a removed one whenever it appears that the suit does not really and substantially involve a controversy of which the court has jurisdiction. 28 U.S.C.A. § 80. It is unnecessary to discuss generally what may be done on a pretrial hearing. The record sufficiently shows that the court heard the motions to dismiss, treated them as pleas to the jurisdiction, and without objection heard evidence on them; the trustee himself offering the deposition of Boothe on which, as the opinion of the court shows, the decision was mainly rested. It appeared without contradiction that Boothe Mill & Elevator, Inc., had bought wheat and shipped it to Kimbell Milling Company during the summer and early fall, Kimbell storing it for sale, and paying drafts drawn against the wheat sometimes with bill of lading attached and sometimes not, but all advances being for wheat actually in Kimbell's warehouses or en route on bill of lading transferred to Kimbell. There was no express agreement, but Boothe says he expected to pay interest on...