Loop v. Winters' Estate

• Citation: 115 F. 362
• Decision Date: 27 March 1902
• Docket Number: 723.
• Parties: LOOP v. WINTERS' ESTATE et al.
• Court: U.S. District Court — District of Nevada

115 F. 362

LOOP v. WINTERS' ESTATE et al.

No. 723.

United States Circuit Court, D. Nevada.

March 27, 1902

This suit was commenced in the state court of Lincoln county Nev., September 28, 1901, against 'the estate of Aaron Winters, deceased, J. C. McClanahan, executor of the last will and testament of said Aaron Winters, deceased, Alexander Falconer, the devisee and beneficiary in and of said last will, Phoebe Hearst, F. W. Clark, John Doe, Richard Roe, John Denn, and Richard Fenn' (the last four names are fictitious, intended to represent certain defendants whose real names are unknown, and, when ascertained, to have their names substituted), to recover a one-half interest in the Green Monster mine, situated in Lincoln county, Nev., it being alleged in the complaint that this mine was located by plaintiff and Aaron Winters during his lifetime, and the assessment work done thereon by them. Among other things, it is alleged 'that during the year A.D. 1898 the said plaintiff was compelled * * * to absent himself from said mining claim and its locality, and left the said mining claim in charge of said Winters, his co-owner and co-tenant, as aforesaid, who, in consideration of the work and labor theretofore done and performed on said mine and mining claim by said plaintiff for the benefit of said Winters, promised and agreed to do and perform, or cause to be done and performed, all work and labor on said mining claim during said year A.D. 1898, necessary to preserve his own and said plaintiff's interest therein, and prevent a forfeiture thereof; that, notwithstanding said promises and agreements and without the consent of said plaintiff, and, as plaintiff is informed and believes, with intent to defraud said plaintiff, said Winters died not perform or have performed said necessary work and labor during the year A.D. 1898, but early in the year A.D. 1899, with the like intent to defraud the said plaintiff, relocated said mining claim, and the whole thereof, in his own name, and with the same name by which it was located and recorded by said plaintiff and said Winters, to wit, the Green Monster; that thereafter as said plaintiff is informed and believes, and with like intent to defraud this said plaintiff the said Winters bonded the said mining claim, as he had relocated the same, to the said Phoebe Hearst, or to parties representing her, for the sum of two thousand and five hundred dollars; that the parties to whom said mine was bonded well knew, as this said plaintiff is informed and believes all of the facts in relation to said plaintiff's interest in said mining claim, and of said Winters' attempt and design to defraud said plaintiff of his interest therein; * * * that said plaintiff is informed and believes, and so charges the fact to be, that said defendants have conspired and are conspiring together to defraud this said plaintiff of his said interest in said Green Monster mine and mining claim, and to hold the title and possession thereof from him'; and that plaintiff has been damaged in the further sum of $1,000. The complaint is silent as to the citizenship and residence of the parties plaintiff and defendants. In due time after service the defendants F. W. Clark and Phoebe Hearst, and J. C. McClanahan, named as executor of the last will and testament of Aaron Winters, deceased, petitioned the state court to remove said suit into this court. This petition, after denying the allegations of the complaint, states: 'That the said J. C. McClanahan never qualified as executor of the last will and testament of said Aaron Winters, deceased, and the said J. C. McClanahan has renounced any right he may have or might have had to act as such executor, as appears from the affidavit of said McClanahan, hereto annexed, marked 'Exhibit A,' and made a part of this petition for removal; that at the time of the commencement of the above-entitled action letters testamentary had not, nor had letters of administration with the will annexed, been issued upon said last will and testament to any one, nor had letters of administration been issued to any one upon the estate of said Aaron Winters, deceased; that at said time there was pending in the above-entitled court the petition of said J. C. McClanahan for the issuance to him as such executor, of letters testamentary upon said last will and testament, but that said J. C. McClanahan and the person sued herein as 'Alexander Falconer, the devisee and beneficiary in and of said will,' are not necessary parties, nor is either of them a necessary party, to the above-entitled action, or to any controversy involved therein, nor is any cause of action stated against them, or either of them, in said complainant; that the said Alexander Falconer was, at the time of the commencement of the above-entitled action or suit, and still is, a citizen and resident of the state of California, residing in the county of San Bernardino, in said state, and a nonresident of said state of Nevada; that the matter and amount in dispute in the above-entitled action, or to any controversy involved therein, nor is any cause of action stated against them, in said complainant; that the said Alexander Falconer was at the time of the commencement of the above-entitled action or suit, and still is, a citizen and resident of the state of California, residing in the county of San Bernardino, in said state, and a nonresident of said state of Nevada; that the matter and amount in dispute in the above-entitled action or suit, and every issue of fact and law therein, is or are wholly between citizens of different states, to wit, between your petitioners, F. W. Clark, and Phoebe Hearst, defendants in said action or suit, who aver that they were, and each of them was, at the commencement of the above-entitled action or suit, and still are, citizens and residents of the state of California residing at the city and county of San Francisco, in said state, and nonresidents of the state of Nevada, and said J. D. Loop, the plaintiff in the above-entitled action or suit, who was at the time of the commencement of the above-entitled action, and still is, a citizen and resident of the state of Nevada, residing in said county of Lincoln.' Said petition alleges further between said Loop as plaintiff and Phoebe Hearst and F. W. Clark, which can be wholly determined between them without reference to the rights of the other defendants. Petitioners for removal filed a bond, which was approved by the judge of the state court, and the case was thereupon removed to this court. The plaintiff moves to remand the case 'upon the ground that said suit and action was improperly removed to this court,' the said motion being made 'upon the complaint in said suit and action and the petition and bond of removal.'

Geo. S. Sawyer, for plaintiff.

Henry Mayenbaum, T. J. Osborn, Page, McCutchen, Harding & Knight, and Torreyson & Summerfield, for defendants Phoebe Hearst and F. W. Clark.

HAWLEY District Judge (orally).

The contention of counsel for plaintiff is: (1) That the petition for removal was not presented to the state court, and that there is no order of removal. (2) There is no bond on removal, the instrument filed as such not being under seal; that the state court has the right to pass upon the sufficiency of the bond before it loses its jurisdiction. (3) That the petition does not show that all of the defendants are citizens of another state from that of plaintiff, nor that the cause of action is separable.

No affidavits are presented in support of this motion, and no plea interposed to the jurisdiction of the court. The jurisdictional facts set forth in the petition must therefore, be presumed to be true, unless the whole record, upon inspection, affirmatively shows something to the contrary. 18 Enc.Pl.& Prac....