Humphrey v. Stanolind Oil & Gas Company

• Citation: 232 F.2d 925
• Decision Date: 08 May 1956
• Docket Number: No. 15814.,15814.
• Parties: Ether HUMPHREY et al., Appellants, v. STANOLIND OIL & GAS COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

232 F.2d 925 (1956)

Ether HUMPHREY et al., Appellants, v. STANOLIND OIL & GAS COMPANY, Appellee.

No. 15814.

United States Court of Appeals Fifth Circuit.

May 8, 1956.

Montague S. Ross,, Nashville, Tenn., E. B. Votaw, Beaumont, Tex., for appellants.

Ewell Strong, Strong, Moore, Pipkin, Strong & Nelson, Beaumont, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.

HUTCHESON, Chief Judge.

This appeal is from a judgment dismissing plaintiffs' suit with prejudice because of their failure to comply with an earlier order¹ of the court entered June 13, 1955, requiring plaintiffs, upon the purported authority of Rule 19(b) F.R.C.P., 28 U.S.C.A., to make additional parties defendant the persons and corporations named in the order. It presents for our review the single question, whether the order of June 13th was validly and properly entered.

The matter developed below, it comes here, upon a series of pleadings, motions and orders² which put and kept plaintiffs off balance and finally knocked them out in a manner strongly reminiscent of the strategy and tactics successfully employed, and the results achieved by defendants, in the trial court in Loew's Inc., v. Bays, 5 Cir., 209 F.2d 610.

Appellants insist that the order directing the making of additional parties defendant is not only without precedent in statute, rule, or decision, but is contrary to, indeed in the very teeth of the invoked rule. They point out that the rule expressly and precisely imposes as a condition that the persons who may be ordered to be made parties under the rule be persons "who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties" (emphasis supplied), and that neither in the motion nor in proof in support thereof is compliance with this essential condition made to appear. So pointing, they insist that under settled law, state and federal, the individuals and corporations named in the motion and order are not such persons as either should, or could, be required to be made parties.

While the language of the rule is, we think, so plain as to require no citation of authority in support of this view, Moore's Federal Practice, Vol. 3, 2nd Ed., Sec. 1909, p. 2158, "Actions Involving Real and Other Property" is directly in point:

"In determining what parties must be before the court, two matters deserve consideration: What type of legal interest in the property is asserted, and what type of relief is demanded. Where the interest is distinct and the relief sought does not go beyond the protection of that interest, only the parties immediately involved are indispensable, and the fact that other parties may have like interests is immaterial. For example, one tenant in common may sue in ejectment in order to recover his aliquot portion of the land without joining the other tenants in common."

while in the note are cited "Chidester v. City of Newark 3 Cir., 162 F.2d 598 and McComb v. McCormack 5 Cir., 159 F.2d 219 (trespass to try title under Texas law)". In point also here in Greenleaf v. Safeway Trails, 2 Cir., 140 F.2d 889, 890, where, after stating, The court erred "in dismissing the action for want of jurisdiction" under rule 19 (a), the Court of Appeals for the Second Circuit went on to say:

"We do not believe that rule 19 (b) required Eastern to be made a party. The condition of its applicability is that the absent party is a necessary party in order that complete relief may be accorded between those already parties. See 2 Moore\'s Fed. Practice, Supp. 1942, p. 46, n. 1." (Emphasis supplied.)

Appellee does not cite a single case supporting its view. It concedes that the rule in Texas and in the Federal Court is that persons claiming an individual interest in land may sue and be sued without joining others so claiming. It nevertheless, without citation of authority or, as we think, any sound reason, contends here that Rule 19(b) authorized the action taken. It does not in its motion allege, it does not claim here, or if it does, it does not point to any reason for so claiming, that the defendants it seeks to have made parties are such persons as "ought to be parties if complete relief is to be accorded between those already parties." (emphasis supplied)

It is apparently laboring under the impression that, for action under the rule, allegations merely that it would be desirable or useful to have as many claimants in the suit as possible, providing only that their presence does not affect the jurisdiction, would suffice to support the order.

We cannot agree with this view. Indeed, we are in no doubt that the power claimed and asserted below, in effect to give to the defendant the right to compel plaintiffs to join as defendants such persons as the defendant would like to have made parties, has not been conferred and does not exist.

The order of June 13, 1955, on which the judgment appealed from rests, is invalid and may not stand. The order of August 11th, from which this appeal is taken,...