London v. Kingsley

• Decision Date: 23 November 1948
• Docket Number: Civ. A. No. 3255.
• Parties: LONDON et al. v. KINGSLEY
• Court: U.S. District Court — Middle District of Pennsylvania

81 F. Supp. 83

LONDON et al. v. KINGSLEY

Civ. A. No. 3255.

United States District Court M. D. Pennsylvania.

November 23, 1948.

Peter P. Jurchak, of Wilkes Barre, Pa., for plaintiffs.

M. J. Martin, of Scranton, Pa., for defendant.

WATSON, Chief Judge.

The Plaintiffs in the Complaint in this action claim interest in certain coal lands, located in Pennsylvania and alleged to be in the possession of the Defendant, as heirs of one Isaac London, Deceased, and as such ask that the Defendant, his servants, agents, and lessees be ordered to surrender possession of said coal lands, to render an immediate accounting of the amount of coal mined by him on said coal land, and to pay the total amount of mesne profits derived from coal mined, and that a receiver pendente lite be appointed to collect and receive royalties from coal now being mined and to conserve and manage said coal land until final adjudication.

The Defendant filed a Motion to Dismiss on the ground that it appears on the face of the Complaint that jurisdiction of this Court depends upon diversity of citizenship, and that said diversity is not shown since the Complaint alleges that certain of the Plaintiffs are citizens of the same state as the Defendant. Subsequent thereto, on motion of the Plaintiffs to discontinue as to certain Plaintiffs, an order was entered by the Court discontinuing the action as to those Plaintiffs, who appear from the Complaint to be citizens of the same state as the Defendant, without prejudice to the remaining Plaintiffs who do not appear from the Complaint to be citizens of the same state as the Defendant. This Motion to Dismiss is now before the Court for disposition.

Although an original Complaint is not maintainable because one or more of the Plaintiffs therein are citizens of the same state of which the Defendant is a citizen, the jurisdictional defect may be removed and the cause proceeded with following a dismissal of the Complaint as to those Plaintiffs who are citizens of the same state as the Defendant, unless such Plaintiffs are indispensable parties. Drumright et al. v. Texas Sugarland Co., et al., 5 Cir., 1927, 16 F.2d 657, certiorari denied, 274 U.S. 749, 47 S.Ct. 764, 71 L.Ed. 1331; Anglo California National Bank of San Francisco v. Lazard, et al., 9 Cir., 1939, 106 F.2d 693; Alderman et al. v. Elgin, J. & E. Ry. Co., 7 Cir., 1942, 125 F.2d 971.

Since the Plaintiffs claim the real estate by descent, they hold, if at all, as tenants in common under the Pennsylvania Intestate Act, 1917 P.L. 429, 20 P.S. § 132. The Pennsylvania rule as to suits by tenants in common against third persons is that tenants in common must join in all personal actions concerning the common property or based on a common right growing out of the property, unless there is a severance of claims. This rule which now prevails was announced by the Supreme Court of Pennsylvania nearly ninety years ago. Irwin's Adm'r v. Brown's Exr's 1860, 35 Pa. 331; and Stewart v. Cummings, Adm'r, 1933, 109 Pa.Super. 57, 165 A. 544. In 30 Corpus Juris Secundum, Equity, § 143, at page 576, the general rule as to suits by co-owners or co-claimants is stated as follows: "It is, of course, impossible to divest or destroy a title by suit in which the holder of title attacked is not a party; and therefore, where the decree is to affect a title, all holding or claiming such title must be brought in."

The motion presents the single question of whether the Plaintiffs as to whom the order of discontinuance was entered, that is, certain of the co-tenants, are indispensable parties to this action. An indispensable party is a person who not only has an interest in the controversy but an interest of such nature that a final decree cannot be made without either affecting that interest or leaving the controversy in such a condition that its final...