Kelly v. Alabama-Quenelda Graphite Co.

• Decision Date: 02 October 1929
• Docket Number: No. 50.,50.
• Citation: 34 F.2d 790
• Parties: KELLY v. ALABAMA-QUENELDA GRAPHITE CO. et al.
• Court: U.S. District Court — Middle District of Alabama

34 F.2d 790 (1929)

KELLY v. ALABAMA-QUENELDA GRAPHITE CO. et al.

No. 50.

District Court, N. D. Alabama, E. D.

October 2, 1929.

Pruett & Glass, of Ashland, Ala., and Edgar Allen and Ray J. Emmerson, both of Birmingham, Ala., for plaintiff.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, Ala., for defendants.

CLAYTON, District Judge.

The bill was originally brought by plaintiff Kelly against the Alabama-Quenelda Graphite Company, a corporation of Delaware, as sole defendant, in the circuit court of Clay county, Ala., on July 27, 1929. The bill was amended, retaining the Alabama-Quenelda Graphite Company as a defendant and making John L. Senior, Francis P. Butler, John W. Esmond, and William H. Wildes, citizens and residents of Chicago, Ill., defendants, under date of August 17, 1929. The cause was removed on timely application by the Alabama-Quenelda Graphite Company to this court on August 24, 1929. The plaintiff Kelly made application to remand the cause to the state court, and upon this motion the cause is now submitted for decretal order.

The prayer of the bill, as amended, among other things, is for the appointment of a receiver to take charge and control of all the assets, business, and affairs of the graphite company; that "J. L. Jackson, Trustee, be divested of his power and authority under said illegal and pretended trust deed, and said deed be set aside and held for naught; that the respondents, John L. Senior, Francis P. Butler, John W. Esmond and William H. Wildes be directed to return to the corporation or the receiver all the stock that they have received from the corporation as a bonus for the loans set out in said bill, together with all the bonds that they illegally hold as security for said loans, and to propound whatever claims they have against the corporation in this Court," etc.

It is questioned whether or not the matter in dispute is sufficient in amount to give the federal court jurisdiction of the cause. I think that the subject-matter involved in the controversy is sufficient to give this court jurisdiction, for the amount in dispute is the value of the property and assets of the defendant corporation, which the bill seeks to have administered by the court.

In some aspects Taylor v. Decatur Mineral Land Co. (C. C.) 112 F. 449, is analogous to the instant case. See also Towle v. Society (C. C.) 60 F. 131; Putnam v. Carpet Co. (C. C.) 79 F. 454; Gibson v. Shufeldt, 122 U. S. 27, 7 S. Ct. 1066, 30 L. Ed. 1083; Handley v. Stutz, 137 U. S. 366, 11 S. Ct. 117, 34 L. Ed. 706.

It is urged by the plaintiff that all parties who are made defendants in the amended bill, and who have not been served with summons, must join in the petition for removal or else the cause must be remanded. I think the weight of authority, especially the opinions in recent cases, sustains the rule that the defendants over whom the court has not acquired jurisdiction may be disregarded in removal proceedings, and that the defendant who has been summoned must of necessity be allowed to exercise its right of removal. Hunt v. Pearce (C. C. A. 8th Circuit) 284 F. 321; 11 Ann. Cas. 963; 23 R. C. L. 732; Tremper v. Schwabacher (C. C.) 84 F. 413; Bowles v. H. J. Heinz Co. (C. C.) 188 F. 937; Hunt v. Pearce (D. C.) 271 F. 498, affirmed (C. C. A.) 284 F. 321; Community Bldg. Co. v. Md. Cas. Co. (C. C. A.) 8 F.(2d) 678.

In the oral argument it was insisted that the graphite company could preserve its right of removal by timely filing its petition to remove, and that it, the sole original defendant, was required to let the cause remain without action in the state court until the other defendants brought in by amendment were properly before the...