Jones v. Box Elder County, 392.

• Decision Date: 02 October 1931
• Docket Number: No. 392.,392.
• Citation: 52 F.2d 340
• Parties: JONES et al. v. BOX ELDER COUNTY et al.
• Court: U.S. Court of Appeals — Tenth Circuit

52 F.2d 340 (1931)

JONES et al. v. BOX ELDER COUNTY et al.

No. 392.

Circuit Court of Appeals, Tenth Circuit.

July 13, 1931.

On Motion to Correct Judgment October 2, 1931.

Ricy H. Jones, of Salt Lake City, Utah, for appellants.

Lewis Jones, of Brigham, Utah (W. E. Davis, of Brigham, Utah, on the brief), for appellees.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

COTTERAL, Circuit Judge.

Ricy W. Jones and Carl W. Jones brought this suit against Box Elder county, Utah, and its county commissioners. They alleged in their complaint they were citizens of New York, the owners and in possession of certain real estate in Brigham City, Utah; the defendants make an adverse claim thereto by way of an interest, lien or estate, but without right, and the subject-matter in dispute was of the value of more than $10,000. The prayer was that the defendants be required to set out their claim, that it be annulled, assertion of it be enjoined, and plaintiffs' title confirmed.

On defendants' motion, new parties were added as defendants to a counterclaim proposed by answer. The answer was filed, setting up tax liens against the property for the unpaid taxes of the several years from 1913 to 1928, for which defendants prayed a foreclosure and sale of the property. By a reply, the plaintiffs objected to the answer as multifarious, challenged the jurisdiction of the court to entertain it, set up the statute of limitations, and assailed the validity of the taxes.

After a trial and submission of the cause, the court decided that the plaintiffs must pay the taxes in a reasonable time as a condition to a decree quieting their title, and, in case of failure to pay them, the county was entitled to foreclose its lien. A future hearing was appointed for entry of the decree.

The plaintiffs filed a special plea "to jurisdiction and motion to dismiss the counterclaim," which were denied. A decree of foreclosure followed, which, after reciting the prior hearing and decision, and the disclaimer of the interpleaded defendants, ordered a dismissal of the complaint and the counterclaim as to the latter, decreed the taxes with interest, penalties, and costs were a first and valid lien on the property, and directed, in case of nonpayment for 60 days, a sale be made of the property by the marshal to satisfy the lien, subject to confirmation by the court.

There was a petition for rehearing, and formal objections to the decree. Both were heard and overruled. The plaintiffs and interpleaded defendants join in an appeal. Many errors are assigned, most of which are obviously unsound.

For example, it is urged the additional defendants were erroneously brought into the case and their presence defeated the jurisdiction of the court to consider the answer for want of diverse citizenship between them and the original defendants. But equity rule 37 (28 USCA § 723) expressly authorizes the joinder of new parties, in order to effect a complete disposition of a cause. The new defendants filed a disclaimer, and both the complaint and counterclaim were dismissed against them. They were nominal parties, but only indispensable parties are considered in determining jurisdiction. Boatmen's Bank v. Fritzlen (C. C. A.) 135 F. 650; Waterman v. Canal-Louisiana Bank & Tr. Co., 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80.

Appellants insist that this suit was one at law between them as owners of the property and the defendants as holders of tax deeds presumably issued as provided by law, and there was error in refusing the motion to transfer the cause to the law docket of the court. The pleadings contain no such averments. The answer alleges that tax deeds were not issued on account of prior litigation, and the reply makes no denial of the fact. Plainly, the suit is one in equity to remove the cloud of tax liens from plaintiffs' title. Twist v. Prairie Oil & Gas Co., 274 U. S. 684, 692, 47 S. Ct. 755, 71 L. Ed. 1297; Pomeroy, Eq. Juris. (4th Ed.) vol. 4, par. 1399. The answer conforms to equity rule 30 (28 USCA § 723) in seeking the enforcement of liens which arose "out of the transaction which is the subject-matter of the suit," and by way of a counterclaim against the plaintiff which might have been "the subject of an independent suit in equity, set up with the same effect as a cross suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and cross claims." American Mills Co. v. American Surety Co., 260 U. S. 360, 43 S. Ct. 149, 67 L. Ed. 306. The issues were purely equitable; and a transfer of the cause was clearly not justified.

The counterclaim is attacked as not presenting a controversy within the jurisdiction of the court, particularly because the separate items of taxes are less than the requisite amount. But the complaint sufficiently sets out the jurisdictional facts. The value of the real estate involved is the test of jurisdiction. The true rule is thus stated in Smith v. Adams, 130 U. S. 167, 9 S. Ct. 566, 569, 32 L. Ed. 895: "A suit to quiet the title to parcels of real property, or to remove a cloud therefrom, by which their use and enjoyment by the owner are impaired, is brought within the cognizance of the court, under the statute, only by the value of the property affected." The District Court therefore had jurisdiction to enter upon and determine the controversy, regardless of the taxes in question. But, even on plaintiffs' theory that the taxes form the real issue in the suit, the aggregate of them exceeds the jurisdictional amount, and, as the parties on each side are concerned in all, would control for purposes of jurisdiction. Commercial National...