Givens v. Moll

• Decision Date: 12 January 1950
• Docket Number: No. 12520.,12520.
• Parties: GIVENS v. MOLL et al.
• Court: U.S. Court of Appeals — Fifth Circuit

177 F.2d 765 (1949)

GIVENS v. MOLL et al.

No. 12520.

United States Court of Appeals Fifth Circuit.

November 15, 1949.

Rehearing Denied January 12, 1950.

J. Terry Reynolds, Jr., Mobile, Ala., Henry C. Vosbein, New Orleans, La., for appellant.

Hugh M. Caffey, Leon G. Brooks, Brewton, Ala., for appellees.

Before HUTCHESON, McCORD, and RUSSELL, Circuit Judges.

HUTCHESON, Circuit Judge.

Appealing from a judgment dismissing his suit for want of jurisdiction, appellant, a citizen of Florida, is here insisting that his complaint showed both the requisite diversity of citizenship and the existence of a federal question, and the judgment must be reversed.

We cannot at all agree. Nowhere in the course of the lengthy complaint is the requisite diversity claimed or even suggested.¹ On the contrary, the complaint, in naming as a "real respondent" W. E. Duggan, a co-citizen with plaintiff of Florida, on its face deprives the suit of the requisite diversity. In addition, it names as nominal parties defendant² but in fact real parties plaintiff, his brothers and sisters, co-heirs with him and co-claimants in the cause of action, all of whom are co-citizens of Alabama with Caffey et al., named by plaintiff as the real defendants.

When it comes to the federal question ground of jurisdiction, that the suit arises under the Constitution and laws of the United States, while it is clear that plaintiff's reliance for jurisdiction is on that ground, it is equally clear that the complaint signally fails to present such a ground. The only reference in the long complaint, with its mass of attached exhibits, to either the Federal Constitution or the statutes is the reference in paragraph 1, on page 3 of the transcript: "* * * depriving your complainant of his lawful inheritance without due process of law and in violation of the Fourteenth Amendment of the Constitution of the United States, to-wit: `Nor shall any State deprive any person of life, liberty or property, without due process of law; not deny any person within its jurisdiction the equal protection of the Laws."

Assuming, without deciding, that this generalization, if supported by pleaded facts, would be a sufficient claim of federal jurisdiction on the ground of a federal question, we find no allegation of fact whatever which shows or tends to show the existence of a federal question in this cause.

Stripped of the involvements, the intricacies, the particularities, the redundancies with which the complaint abounds, what it comes down at last to is a claim: that Caffey, as solicitor and advisor of the Givens Estate, aided and abetted by other defendants named and unnamed, by and with the aid of court proceedings and court judgments in Alabama,³ conceived, engineered, and carried out a scheme to defraud the James Alexander Givens Estate and plaintiff and his co-heirs, the owners thereof, and that as a result of the taking and foreclosure of mortgages and other acts and proceedings in and out of court, the defendants have wronged plaintiff and his co-heirs.

The prayer is for an accounting and for an injunction against waste, for restoration of the title to the estate of Givens, for the setting aside of the judgment of foreclosure and that a special administrator be appointed to bring about a division in kind among the rightful heirs of James Givens.

Here claiming: that Duggan is neither an indispensable nor a necessary party and instead of dismissing the complaint for his joinder, he should be dismissed from it; and keeping silent altogether about his co-heirs and co-claimants, co-citizens with the Alabama defendants, the appellant puts his main reliance on his contention that the suit involves a federal question under the 14th Amendment, and that by state action violating the due...