Lomax v. Foster Lumber Co.

Decision Date14 December 1909
Docket Number1,937.
PartiesLOMAX v. FOSTER LUMBER CO. et al. [1]
CourtU.S. Court of Appeals — Fifth Circuit

On October 27, 1906, the plaintiff in error, Annie T. Lomax filed in the district court of Liberty county, Tex., her original petition against the Foster Lumber Company and the Trinity River Lumber Company. The petition was in the form of trespass to try title, as required by the Texas statutes. On January 10,1907, she filed in said court her first amended original petition, which is in every respect the same as her original petition, with the exception that, in addition to the Foster Lumber Company and the Trinity River Lumber Company, she complains of and makes parties L. H. Perry and J. B. Mann of Harris county. Tex.

The plaintiff alleged that she resided in Harris county, Tex and that the defendant the Foster Lumber Company is a corporation duly incorporated under and by virtue of the laws of the state of Missouri, and doing business in the state of Texas under and by virtue of a permit from the state to do business therein, and that the defendant the Trinity River Lumber Company is a corporation duly incorporated under and by virtue of the laws of the state of Texas, and the plaintiff further shows that it is necessary to make L. H Perry and J. B. Mann, of Harris county, Tex., parties to this suit, and this plaintiff, now complains of all of the parties above mentioned as defendants herein, and shows the court that the defendants the Foster Lumber Company and the Trinity River Lumber Company have been heretofore duly served with citation, and plaintiff prays for citation for the newly made defendants L. H. Perry and J. B. Mann. This plaintiff shows to the court: That she is the legal owner in fee simple of the tract of land hereinafter fully described. That on or about the 22d day of October, 1906, and long prior to said date, she was in peaceable and adverse possession of said property hereinafter described, using, cultivating, and enjoying the same through her tenant, who was actually occupying the same. That on or about the 22d day of October 1906, the defendants and each of them unlawfully entered upon said land, and ejected the plaintiff therefrom, and now unlawfully withhold from the plaintiff the possession thereof, to her damage in the sum of $20,000. That the land so unlawfully entered upon by the defendants and now unlawfully withheld from the possession of this plaintiff is described as follows, to wit: Being 1,476 acres of land in Liberty county, Tex., what is known as the David Rankin survey, and the same land that was patented to David Rankin on the 30th day of August, 1849, by patent No. 25, volume 9, which said land is more accurately described by metes and bounds as follows, to wit: Then follows description by metes and bounds. On January 10, 1907, the defendant L. H. Perry filed as an answer in said cause a general demurrer, general denial, and a special plea setting up the fact that he was the owner of one-half of the David Rankin one-third of a league of land, and that his codefendant, the Foster Lumber Company, is the owner of the remaining one-half thereof, and is asserting title to the entire survey. And he filed a cross-bill against the plaintiff and all his codefendants, praying for judgment for one-half the land and a partition between himself and the Foster Lumber Company.

On February 18, 1907, the defendant, John Mann, filed in the district court of Liberty county, Tex., his answer, consisting of a general demurrer and general denial.

On February 18, 1907, the defendant the Trinity River Lumber Company filed in the district court of Liberty county, Tex., its answer, alleging that: 'It is not a corporation or a partnership, and that, in fact, it had no legal identity, but that all the property held by it belongs to and is the property of the defendant the Foster Lumber Company, and further represents to the court that it makes no claim to the property sued for, except such as may be held by it for the use and benefit of the Foster Lumber Company, and except for the rights so held it disclaims any interest or title in the land sued for, and asks that the case may be dismissed so far as it is concerned. ' On February, 18, 1907, the defendant the Foster Lumber Company filed its answer, consisting of a general demurrer, general denial, and plea of the statutes of three, five, and ten years' limitation, and a plea in reconvention, alleging that 'it is a corporation organized under the laws of the state of Missouri, and as such is a resident citizen of said last-named state, with authority to take, own, and hold timber and timber lands for the purpose of such organization, and has a permit to do business in the state of Texas with the authority aforesaid; that the plaintiff, Annie T. Lomax, is a resident citizen of the county of Harris, state of Texas; that the value of the property in controversy exceeds the sum of $2,000, exclusive of interest and costs. ' This defendant further alleges and represents to the court 'that it is the owner and entitled to the immediate possession of the property hereinafter described, and that on or about the 13th day of November, 1906, the said plaintiff wrongfully and forcibly took possession of said property and withholds the same from this defendant, and is now wrongfully and unlawfully withholding said possession from this defendant, to its damage in the sum of $5,000. The property so wrongfully taken and withheld from this defendant is described as being 1,476 acres of land in Liberty county, Tex., known as the 'David Rankin survey,' being the whole of said survey, which land was patented to David Rankin by the state of Texas August 30, 1849, by patent No. 25, volume 9, being the same land described by plaintiff in her said petition. Wherefore, premises considered, this defendant demands that said cause be dismissed and it go hence without day, and that judgment be entered decreeing the title and writ of possession in said land in this defendant for the recovery of costs, and for general and special relief.'

And on February 18, 1909, the Foster Lumber Company filed in the district court of Liberty county, Tex., its petition and bond for the removal of said cause to the Circuit Court of the United States in and for the Eastern District of Texas at Beaumont, as follows: 'In the District Court of Liberty County, Texas. Annie Thompson Lomax v. Foster Lumber Company et al. No. 3977. Petition for Removal. To the Honorable L. B. Hightower, Judge of said Court: Your petitioner, Foster Lumber Company, defendant in the above styled and numbered cause, respectfully shows to this honorable court that the matter and amount in controversy exceeds the sum of two thousand dollars ($2,000.00), exclusive of interest and costs, and said suit is of a civil nature; that the controversy in this suit is, and at the time of the commencement of this suit was, between citizens of different states, and that your petitioner was at the time of the commencement of this suit, and still is, a corporation organized under the laws of the state of Missouri, with its principal office in the city of Kansas City, in said state, and as such is a resident and citizen of the said state of Missouri, and a nonresident of the state of Texas; that the plaintiff, Annie Thompson Lomax, was at the time of the commencement of this suit, and still is, a resident and citizen of the county of Harris, state of Texas, and is and was at the time aforesaid a nonresident of the state of Missouri; that the defendant L. H. Perry was at the commencement of this suit, and still is, a resident and citizen of the county of Harris, state of Texas, and is, and was at the time aforesaid, a nonresident of the state of Missouri; that the defendant J. B. Mann was at the commencement of this suit, and still is, a resident and citizen of the county of Harris, state of Texas, and is, and was at the time aforesaid, a nonresident of the state of Missouri.

Your petitioner further shows to this honorable court that there is in said suit a controversy which is only between citizens of different states, and which can be fully determined as between them, to wit, a controversy between your said petitioner, which avers that it was and is a corporation and citizen as hereinbefore alleged, and the said plaintiff, who your petitioner avers was then and still is a resident and citizen as hereinbefore alleged; that the said controversy is of the following nature: The said plaintiff claims to be the owner of and is herein suing for the title and possession of the property described in her petition, and your petitioner claims to be the owner of and entitled to the possession of the whole of said land, and that your petitioner and the said plaintiff are both actually interested in said controversy and that your petitioner desires to remove this suit before the trial hereof into the next Circuit Court of the United States to be held in and for the Eastern District of Texas at Beaumont. Your petitioner alleges that the defendant called the Trinity River Lumber Company is neither a partnership nor a corporation, and. in fact, has no legal identity, and is only a name by which your petitioner the Foster Lumber Company, conducts a part of its business, and that it in fact is the Foster Lumber Company, and whatever titles or property stands in its name is in fact property of the Foster Lumber Company. The defendant L. H. Perry is in no wise interested in said property or the title or possession thereof with your petitioner, and, if he has any interest, claim, or right in or to said property, such interest, claim, or right is distinct from and independent of the right and title of your petitioner, and any claim or right that h...

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