Johnson v. Marsh, 168.

Citation49 F. Supp. 137
Decision Date18 March 1943
Docket NumberNo. 168.,168.
PartiesJOHNSON et al. v. MARSH et al.
CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska

O. B. Clark, of Lincoln, Neb., for plaintiffs.

Raymond M. Crossman and Ralph M. West, both of Omaha, Neb. (Brown, Crossman, West, Barton & Fitch, of Omaha, Neb.), for defendant United States Fidelity & Guaranty Co.

DELEHANT, District Judge.

The plaintiffs present an application or motion to remand this suit to the District Court of Saline County, Nebraska, whence it was heretofore removed to this court upon the petition of the defendant, United States Fidelity & Guaranty Company, a Maryland corporation, hereinafter referred to as "the company". The presence of an action involving the jurisdictional amount is granted.

For the purpose of disclosing the issue presented upon the motion, it seems hardly to be necessary to record here an exhaustive analysis of the petition of the plaintiffs which, with its exhibits, is copied in some twenty-two pages of the transcript on removal. By it, twenty-two plaintiffs, all citizens and residents of states other than either Nebraska or Maryland, bring an action against four other persons of like residential status and interest with the plaintiffs, who allegedly have refused to join as plaintiffs, and also against other adversely interested defendants including Bert M. Marsh and Fred H. Bruning, citizens and residents of Nebraska, both individually and as executors of the estate of Dewitt C. Marsh, deceased, and the company as surety on their executors' bond, Arnold C. Blattspieler, a citizen and resident of Nebraska, both individually and as special administrator of the same estate and the corporate surety on his bond, a nonresident of both Nebraska and Maryland, and also one Retta McGee Dunning and Harry Marsh, both residents of Iowa.

The petition sets out in detail certain contractual arrangements of long standing between Dewitt C. Marsh and his wife, Ellen C. Marsh, a childless couple, whereby, upon the death of the survivor of them, a distribution of their substantial property, real and personal, title to which stood ultimately in Dewitt C. Marsh, should be made one-half to the heirs at law and next of kin (exclusive, in the case of the one first dying, of the survivor of them) of each of them; the death of Ellen C. Marsh before that of Dewitt C. Marsh, and his subsequent demise; the status of the plaintiffs and the four similarly interested defendants as the heirs at law and next of kin (inclusive of certain assignees and successors of heirs) of Ellen C. Marsh; the execution by Dewitt C. Marsh shortly after Ellen C. Marsh's death of a will effectuating the contractual purpose; his subsequent physical and mental decline; the intrusion into his confidence of Bert M. Marsh under circumstances imposing upon him the status of one exercising a virtual domination over an aged and mentally infirm person, during which time he secured possession and control of the alleged agreements and will which he thereafter suppressed and permanently concealed; the formation of a fraudulent conspiracy and scheme by Bert M. Marsh, Fred H. Bruning, Arnold C. Blattspieler, Harry Marsh and Retta McGee Dunning, to defraud the heirs and next of kin of Ellen C. Marsh of the fruits of the agreements and will; the fraudulent procurement by Bert M. Marsh, in furtherance of the conspiracy, of the signature of a new will by Dewitt C. Marsh while in a state of senile incompetence and in the face of his imminent death, in which the agreements were disregarded and his property was given, after payment of certain minor legacies, to his nephews and a niece, including among others the defendants, Harry Marsh, Bert M. Marsh and Retta McGee Dunning, and Bert M. Marsh and Fred H. Bruning were designated as executors; the fraudulent concealment by the conspirators of Dewitt C. Marsh's death; the presentation for probate by Bert M. Marsh and Fred H. Bruning of the second will and the procurement by fraud upon the courts and the adversely interested parties of its admission to probate and the dismissal of an abortive appeal from probate; the qualification of Blattspieler as special administrator and his giving of his bond in due form; the like qualification of the designated executors, Bert M. Marsh and Fred H. Bruning, and the giving of their bond in due form as set out in full with the company as sole surety thereon; the mal-administration of the executors in and by the inclusion in their inventory, and their complete administration and distribution under the probated will, of the entire property standing in the name of Dewitt C. Marsh, notwithstanding the agreements and the initial will, and like inclusion by the special administrator, all in fraud of the rights and to the injury of the adversely interested parties, including the plaintiffs, and in pursuance of the alleged conspiracy.

The prayer is for an accounting of all property coming into the possession of the defendants and each or any of them by reason of the administration of the estate under the probated will, and of the amounts due the plaintiffs by reason of the inclusion within the property affected by the will of the one-half of the family fortune allegedly belonging to those claiming through Ellen C. Marsh, and for judgment and decree against the offending defendants and each of them for the amounts so found due with costs, for specific relief in respect of certain lands, and for general relief.

The company resists the application to remand. It contends that the petition presents, as between the plaintiffs and the defendants situated similarly to them on the one hand and the company on the other hand, a "controversy which is wholly between citizens of different states, and which can be fully determined as between them" in consequence of which such controversy is separable and the company may remove the entire suit to this court.

The court is unable to agree with the company's contention that the case presents a separable controversy under circumstances allowing removal, within the terms of the statute and the reasoning of the controlling decisions.

The applicable statute is Title 28 U.S.C. A. § 71, of which the material portion follows: "Section 71. (Judicial Code, Section 28, Amended.) * * * Any other suit of a civil nature, at law or in equity, of which the district courts of the United States are given jurisdiction, in any State court, may be removed into the district court of the United States for the proper district by the defendant or defendants therein, being nonresidents of that State. And when in any suit mentioned in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the district court of the United States for the proper district."

Here, more especially, the second sentence of the quoted language is involved but, as certain of the decisions later cited make manifest, it is to be considered in due association with the sentence which precedes it as well as some other comparable but presently unquoted portions of the section.

It is elemental that in the absence of fraudulent joinder the existence of a separable controversy within the language of the act is to be determined from the complaint (here the petition) when the petition for removal is filed; and that the nature of the controversy arising under the pleadings and the right to allege a joint, and therefore nonseparable, controversy is to be determined by the law of the state in which the pleading is filed. Southern R. Co. v. Miller, 217 U.S. 209, 30 S.Ct. 450, 54 L.Ed. 732; Chicago R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473; Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206-215, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Louisville & N. R. Co. v. Ide, 114 U.S. 52-56, 5 S.Ct. 735, 29 L.Ed. 63; Chesapeake & O. R. Co. v. Dixon, 179 U. S. 131, 21 S.Ct. 67, 45 L.Ed. 121; McAllister v. Chesapeake & O. R. Co., 243 U.S. 302, 37 S.Ct. 274, 61 L.Ed. 735; Beckwith v. Chicago, M. & St. P. R. Co., D.C., 223 F. 858; Morris v. Louisville & N. R. Co., C. C., 175 F. 491; Greif v. Sears, Roebuck & Co., D.C., 48 F.Supp. 242; Preston v. Kaw Pipe Line Co., 10 Cir., 128 F.2d 162.

This is not the time, nor, unless and until jurisdiction is retained, is this the place for the consideration of infirmities in the pleading of the plaintiffs, or even whether it adequately states a cause of action under the state law, or under the federal rules a claim upon which relief may be granted, against the removing defendant. Broadway Ins. Co. v. Chicago G. W. R. Co., C.C.W.D.Mo., 101 F. 507. But it seems to the court to be unquestionable that such claim for relief, if any, as is alleged in the petition against the company is a cause of action upon the executors' bond set out as an exhibit with the petition, upon which the defendants, Bert M. Marsh and Fred H. Bruning, are the principal obligors and the company is the surety. Its terms patently create a joint and several liability of its obligors. Its obligation is couched in the following language: "Know all men by these presents: that Fred H. Bruning and Bert M. Marsh as principals and the United States Fidelity and Guaranty Company of Baltimore, Maryland, Surety are held and firmly bound unto Hon. B. V. Kohout, as County Judge, in and for Saline County, and to his successors in office and to all persons herein concerned in the penal sum of Three Hundred and Fifty. Thousand ($350,000.00) Dollars, for the payment of which well and truly to be made, we do jointly and severally bind ourselves and our lawful representatives." (Emphasis added.) And it is the general rule that upon such a bond, the principal obligor and the surety may be sued alone or jointly at the option of the plaintiff. 34 C.J.S. 1213, ...

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5 cases
  • Doran v. Elgin Cooperative Credit Ass'n
    • United States
    • U.S. District Court — District of Nebraska
    • 29 d5 Dezembro d5 1950
    ...Thompson, 200 U.S. 206, 26 S.Ct. 161, 50 L.Ed. 441; Louisville & N. R. Co. v. Ide, 114 U.S. 52, 5 S.Ct. 735, 29 L.Ed. 63; Johnson v. Marsh, D.C.Neb., 49 F.Supp. 137. The second such feature is the obviously tenuous basis of any claimed right of the plaintiff in his own name to bring a direc......
  • Fouche v. Royal Indem. Co. of N. Y.
    • United States
    • South Carolina Supreme Court
    • 1 d4 Abril d4 1948
    ... ... 408, 28 S.E.2d 355. This ... is the general rule in other jurisdictions also. 34 C.J.S., ... Executors and Administrators, § 981. Johnson v. Marsh, ... D.C.1943, 49 F.Supp. 137. It was held in the decision ... last cited that generally the principal obligor and surety ... may be sued ... ...
  • Smith v. Waldemar
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • 16 d4 Junho d4 1949
    ...R. I. & P. Ry. Co. v. Martin, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055; Wright v. Missouri Pac. R. Co., 8 Cir., 98 F.2d 34; Johnson v. Marsh, D.C., 49 F.Supp. 137; Barfield v. Southern Ry. Co., D. C., 47 F.Supp. 684. Many other decisions are to the same Language of new Title 28 indicates t......
  • Duffy v. Duffy
    • United States
    • U.S. District Court — Southern District of Iowa
    • 17 d5 Março d5 1950
    ...do, of the corporation assets by the defendants acting in concert to their mutual benefit. The statement made by the court in Johnson v. Marsh, D.C., 49 F.Supp. 137, seems to me equally appropriate to the situation here. Speaking, 49 F.Supp. at page 139, the court said: "This is not the tim......
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