Hicklin v. Marco

• Decision Date: 08 May 1893
• Docket Number: 92.
• Citation: 56 F. 549
• Parties: HICKLIN v. MARCO et al.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F. 549

HICKLIN v. MARCO et al.

No. 92.

United States Court of Appeals, Ninth Circuit.

May 8, 1893

Zera Snow and Wallace McCamant, for appellants.

C. W Miller and W. Scott Beebe, (T. H. Tongue, on the brief,) for appellee.

Before McKENNA, Circuit Judge, and HANFORD and HAWLEY, District Judges.

HAWLEY District Judge.

From the record in this case it appears that on February 25, 1879 one W. C. Hicklin, being the owner in fee of 320 acres of land in Washington county, Or., executed his promissory note for the sum of $1,000, with interest, payable 90 days after date, in favor of T. B. Handley, and at the same time executed and delivered to said Handley a mortgage on said land to secure the payment of said note; that said note and mortgage were executed for the purpose of securing funds by the negotiation thereof for the purpose of defending certain legal proceedings then pending against said Hicklin, and the balance of the money raised thereon to be paid to Hicklin that the note and mortgage were before maturity assigned by Handley to Thomas Connell; that on August 9, 1879, Connell commenced suit in the circuit court of the state of Oregon for Washington county for the foreclosure of the mortgage that on October 10, 1879, a decree was entered in said suit, by default, against W. C. Hicklin, for the sum of $1,175 and costs, and for the sale of the land to satisfy this amount; that the land was sold, in pursuance of this decree, to Thomas Connell, on the 28th of February, 1880, and the sale thereafter confirmed by the circuit court of Washington county, and after the confirmation the sheriff executed and delivered to said Connell a deed for said land; that Connell, under said deed, entered into possession of said land; that the defendants are in possession of the respective portions of said land, held by them as grantees for Connell; that the circuit court of Washington county did not have any jurisdiction of the person or property of said W. C. Hicklin at the date of the decree of foreclosure therein, owing to defects in the service of the summons, which was by publication; that no consideration was ever received by W. C. Hicklin for said note and mortgage except certain services rendered him by T. B. Handley as an attorney at law, of the value of $400; that no payment has ever been made on said note or mortgage, that W. C. Hicklin died intestate in August, 1888; that Lyman T. Hicklin, appellee herein, and C. B. Bunnell, are the owners in fee of said land, deriving their titles thereto by deeds from all of the heirs of W. C. Hicklin, deceased, the said Lyman T. Hicklin, being the owner of the undivided one-fourth of said property, and the said C. B. Bunnell being the owner of the undivided three-fourths thereof.

This suit was commenced May 5, 1890, to obtain a decree that said note and mortgage be canceled, and that the defendants be barred from claiming any interest thereto or to said land; that the court should decree the amount, if any, due upon said mortgage, and, if the court should find the mortgage to a be valid lien upon said land for the payment of any sum whatever, that the complainant may be permitted to redeem, and pay the same to the persons named and directed by the decree; and that, in the event of such decree, the said C. B. Bunnell be required to contribute and pay to the complainant, Hicklin, a sum equal to three-fourths of the amount decreed to be paid by the court, and for such other decree as shall be equitable, and that complainant recover his costs.

The jurisdiction of the court depends upon the diversity of the citizenship of the parties, complainant being a citizen and resident of the state of California, and the bill alleging that the defendants were citizens and residents of the state of Oregon. In the original bill, C. W. Carmany and C. B. Bunnell were made parties defendant. It was alleged that Carmany was in possession of and claimed a portion of the land in controversy, viz. 15 acres thereof; that Bunnell was the owner of the undivided three-fourths of all the land, and that he was made a defendant because he declined to become a complainant, or contribute to the object of the suit. The defendant Carmany filed a special plea, alleging the truth to be that he was not a citizen of Oregon, but was a citizen and resident of the same state as complainant, to wit, of the state of California. Complainant moved to strike out this plea. Before this was acted upon, on motion of complainant, an order was made allowing him to file an amended bill. The amended bill omitted the name of Carmany as a defendant, but retained the averment as to his possession of a part of the land, the same as in the original bill. Certain exhibits not in the original bill were added. The defendants moved to strike the amended bill from the files, because the bill, as thus amended, was between different parties defendant, and because, among other reasons, that no leave was given to dismiss Carmany. Before this motion was acted upon, on motion of complainant, leave was obtained to file another amended bill. The second amended bill left out Carmany as a defendant. Similar motions were made to take the second amended bill from the files. A demurrer to this amended bill was sustained, and an order entered that Bunnell be dismissed, and leave was given to complainant to file an amended bill. The third amended bill was similar to the others, except that Bunnell was not made a party defendant, and some additional exhibits were attached to the bill. A demurrer to this bill was overruled. The defendants then answered.

Upon this state of facts it is claimed that the court had no jurisdiction of this suit, because Carmany was a citizen of the same state with the complainant; that no leave was ever given to dismiss as to Carmany, and that Carmany was a necessary party defendant. The granting or refusing of leave to file an amended bill or plea is a matter within the discretion of the trial court, and will not be reviewed in an appellate court unless there has been a gross abuse of this discretion. Chapman v. Barney, 129 U.S. 677, 9 S.Ct. 426; Gormley v. Bunyan, 138 U.S. 631, 11 S.Ct. 453. In the absence of any affirmative showing to the contrary, it is the duty of this court to assume that leave was granted to dismiss as to Carmany. If complainant had the right to dismiss as to Carmany, it would follow that an order to amend the bill would include the right to dismiss as to Carmany.

The real question is whether Carmany was an indispensable party to the suit. He was undoubtedly a proper party defendant, but was he such a necessary party as to deprive the court of any jurisdiction to proceed without him? The supreme court of the United States divides parties in equity suits into three different classes: (1) Formal parties, who have no interest in the controversy between the immediate litigants, but have such an interest in the subject-matter as may be conveniently settled in the suit, and thereby prevent further litigation; (2) necessary parties, who have an interest in the controversy, but whose interests are separable from those of the parties before the court, and will not be directly affected by a decree which does complete and full justice between them; (3) indispensable parties, who not only have an interest in the subject-matter of the controversy, but an interest of such a nature that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that its final determination may be wholly inconsistent with equity and good conscience. Formal parties may be parties or not, at the option of the complainant. Necessary parties must be made parties if practicable, in obedience to the general rules which require all persons to be made parties who are interested in the controversy, in order that there may be an end of litigation; but this general rule in the national courts is subject to the exception that, if such parties are beyond the jurisdiction of the court, or if making them parties would oust the jurisdiction of the court, the suit may proceed to a final decree between the parties before the court, leaving the rights of the absent parties untouched, and to be determined in any competent forum. Indispensable parties must, of course, be made parties, and the court cannot proceed without them. Shields v. Barrow, 17 How.

139; Ribon v. Railroad Co., 16 Wall. 450; Williams v. Bankhead, 19 Wall. 571; Kendig v. Dean, 97 U.S. 425.

Having made Carmany a party defendant to the original bill, and Carmany having appeared as a defendant, and it affirmatively appearing that he was a citizen and resident of the same state as complainant, was it the duty of the court to dismiss the bill on the ground that it had no jurisdiction; or, in such a case, could the court grant leave to complainant to dismiss as to Carmany for the purpose of giving the court jurisdiction of the case? There is no question but what the complainant could, under the provisions of section 737 of the Revised Statutes of the United States, and the rules and practice of the supreme court of the United States, have maintained this suit without making Carmany a party defendant, unless it affirmatively appears that he is an indispensable party. In Clearwater v. Meredith, four persons had made a contract with a citizen of Ohio, and three of the four were citizens of Indiana. Suit was brought against the three in the circuit court of Indiana, and upon a plea to the jurisdiction it was held that the nonjoinder of the fourth was justified by the act of 1839, (section 737, Rev. St. U. S.) The court said:

'It is well known that the act of 1839 was intended so to modify the jurisdiction of the circuit court as to make it more

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