Jennings v. Smith

• Decision Date: 31 May 1917
• Citation: 242 F. 561
• Parties: JENNINGS et al. v. SMITH et al.
• Court: U.S. District Court — Southern District of Georgia

242 F. 561

JENNINGS et al. v. SMITH et al.

United States District Court, S.D. Georgia, Northeastern Division.

May 31, 1917

J. S James and J. R. Bedgood, both of Atlanta, Ga., E. H Callaway, of Augusta, Ga John J. Strickland, E. K. Lumpkin and Stephen C. Upson, all of Athens, Ga., F. H. Colley, of Washington, Ga., H. H. Perry and W A Charters, both of Gainesville, Ga., Wm. M. Howard, of Augusta, Ga., Thomas J Shackelford and Henry S. West, both of Athens, Ga., Homer Sutton, of Cornelia, Ga., Stanhope Erwin, of Clarksville, Ga., and Little, Powell, Smith & Goldstein, of Atlanta, Ga., for plaintiffs.

Alex C. King and John L. Tye, both of Atlanta, Ga., Samuel H. Sibley, of Union Point, Ga., Horace M. Holden, Howell C. Erwin, and Hamilton McWhorter, all of Athens, Ga., E. F. Noel, of Lexington, Miss., and King & Spalding, of Atlanta, Ga., for defendants.

SPEER District Judge.

The plaintiffs, citizens of Louisiana, have heretofore filed their bill against Zadoc Smith, a citizen of the Northeastern division of the Southern district of Georgia, and others citizens of that division and district. Plaintiffs aver that they are the next of kin and heirs at law of James M. Smith, deceased. The nature of the litigation may be gathered from the opinion of this court, rendered on application for extraordinary relief, by which receivers were authorized, reported in 232 F. 921, and in 238 F. 48, . . . C.C.A. . . ., in which a reversal of the order just mentioned was directed.

The plaintiffs now seek to amend the original bill. In the proposed amendment they aver that, since the bill was filed, the ordinary-- that is, the probate court-- of Oglethorpe county has appointed Erwin, Arnold, and Smith, as permanent administrators of the estate. The administrators have qualified. It is further averred that the personal estate is much more than $1,000,000 in value, and is far in excess of what would be necessary to pay all the debts against the estate, including expenses of administration. It is further alleged that at the time of his death the intestate owned real estate, located partly in the Northeastern division of the Southern district of Georgia, and partly in the Northern district of Georgia, and at other points in the state. A list of this realty is attached. Petitioners allege that these lands are worth approximately $1,000,000, and that the title to the lands vested in the plaintiffs upon the death of the intestate. They are entitled to possession, subject to the right of the administrators to administer, should the necessity arise. They allege that the administrators all reside in the Northern district of Georgia, and, while not indispensable parties, are proper parties to the bill. They pray that by proper order each of the administrators be directed to appear, plead, answer, or demur on a day to be designated; they being persons in possession and in charge of the lands in question. The further prayer of the amendment is that the court decree that the plaintiffs own the lands described, and that they be entitled to recover possession from the administrators, together with the rents thereon, etc.

Pending the hearing on the original bill, one Lonnie Bullard was made a party defendant by intervention. He is a citizen of Louisiana. The plaintiffs and Bullard now come, and 'each and jointly move the court to strike said Lonnie Bullard, as a defendant, from said case. ' To the allowance of this amendment, the original defendants and proposed defendants object. The objection is on all grounds leveled at the jurisdiction of the court. It is first insisted that the Louisiana intervener, Lonnie Bullard, is an indispensable party, that without his presence the bill cannot proceed, and that, if he remains a party, the jurisdiction must be denied, for the reason that he is a citizen of the same state with the plaintiffs.

In support of the first contention Barney v. Baltimore City, 6 Wall. 280-291, 18 L.Ed. 825, is cited. There Mary Barney, a citizen of Delaware, filed a proceeding for the partition of real estate against the city of Baltimore, several citizens of Maryland, and Matilda and Ann Ridgley, who were citizens of the District of Columbia. It is pointed out in the opinion of the court, pronounced by Mr. Justice Miller, that citizens of the District of Columbia were not citizens of a state, within the meaning of the Judiciary Act, and could not become parties to the proceeding in the federal court, and from the nature of the proceeding the court must parcel out the share of the absent parties at interest without the opportunity for hearing from them. On account of the absence of these essential parties, the proceeding was dismissed.

Torrence v. Shedd, 144 U.S. 527, 12 Sup.Ct. 726, 36 L.Ed. 528, is also cited for defendants, and was also a proceeding to enforce the partition of land. It had been filed in the state court, and was removed to the Circuit Court. There was a motion to remand, which was denied. There Torrence brought suit against Susan M. Shedd, John B. Brown, and 90 others for partition of a tract of land, to an undivided one-third of which Torrence claimed a title under a deed by Edward Sorin. The court, through Mr. Associate Justice Gray points out that the object of the suit was not merely the establishment of the title of the plaintiff in an undivided share of the land, but it was the partition of the whole land and the conveyance of his undivided share into the entire estate in a proportional part, as well as the establishment of his title against all the defendants.

Hooe v. Jamieson, 166 U.S. 395-399, 17 Sup.Ct. 596, 597, 41 L.Ed.

1049, is also cited in support of the objection to jurisdiction. There were citizens of the District of Columbia, and one a citizen of the state of Minnesota, who brought an action for lands in the Western district of Wisconsin. Holding anew that citizens of the District of Columbia could not sue in a federal court, Mr. Chief Justice Fuller, rendering the opinion, observed:

'In the case at bar no application was made for leave to discontinue as to the three plaintiffs who were citizens of the District of Columbia, and to amend the complaint and proceed with the cause in favor of that one of the plaintiffs alleged to be a citizen of Minnesota. Jurisdiction of the case as to four plaintiffs could not be maintained on the theory that when the trial terminated it might be retained as to one.'

The case of Horn v. Lockhart, 17 Wall. 579, 21 L.Ed. 657, was a suit brought in the Circuit Court of the United States by legatees in a will to compel an executor to account for moneys received by him in sales of property belonging to the estate of his testator and to pay to them their distributive shares. It was objected to the jurisdiction that two of the defendants were residents of Texas, the same state with the complainants. This, Mr. Justice Field, for the court, held--

'Was met and obviated by the dismissal of the suit as to them. They were not indispensable parties; that is, their interests were not so interwoven and bound up with those of the complainants, or other parties, that no decree could be made without necessarily affecting them. And it was only the presence of parties thus situated which was essential to the jurisdiction of the court.'

And, continued the learned Associate Justice:

'The question always is, or should be, when objection is taken to the jurisdiction of the court by reason of the citizenship of some of the parties, whether, to a decree authorized by the case presented, they are indispensable parties; for, if their interests are severable, and a decree without prejudice to their rights can be made, the jurisdiction of the court should be retained, and the suit dismissed as to them.'

In view of these authoritative holdings, what seems a conclusive reply to the contention that Lonnie Bullard, of Louisiana, who became a party defendant by intervention, is a party indispensable to a complete and final decree, is that Bullard himself, now, in the presence of the court, moves to strike his name from the record. He has heretofore filed an application to the same effect. There is no contention that this is collusively done. His existence is not disclosed by the original bill. He intervened voluntarily, and can voluntarily withdraw. His intervention must have been in subordination to the propriety of the main proceeding. Equity rule 37 (198 F. xxviii, 115 C.C.A. xxviii); Hardenbergh v. Ray, 151 U.S. 118, 14 Sup.Ct. 305, 38 L.Ed. 93. For the court to hold him an indispensable party would be, in the absence of both pleadings and proof, to accord him a status for which he does not contend. This makes the issue here, on this point, wholly unlike the cases of partition, etc., where the court was obliged to perceive the interest, and the absence of parties, whose presence is necessary to final decree. Besides, the federal courts from an early period of their history have steadily held that, where the real merits of the cause can be determined without affecting the interests of absent persons, though proper parties, the cause may proceed without them. A fortiori will this be done where such absent party has voluntarily disclaimed appearance. Volenti non fit injuria. See Thomas v Anderson, 223 F. 43, 138 C.C.A. 405; Einstein v. Georgia Southern & Florida Ry. (C.C.) 120 F. 1008-1010, affirmed on this ground by Circuit Court of Appeals, 218 F. 58, 133 C.C.A. 657.

Moreover, under the law of Georgia, the interest of Lonnie Bullard, if it exists, would be merely in common with the others whose rights rest on the same ground with his. Here there is no joint tenancy. Park's Annotated Code, Secs. 3722, 3723; Blake v. Black, 84 Ga. 392, 11 S.E. 494.

As to the jurisdiction in a...