McClelland v. Rose

• Decision Date: 10 January 1918
• Docket Number: 3111.
• Citation: 247 F. 721
• Parties: McCLELLAND v. ROSE et al.
• Court: U.S. Court of Appeals — Fifth Circuit

247 F. 721

McCLELLAND v. ROSE et al.

No. 3111.

United States Court of Appeals, Fifth Circuit.

January 10, 1918

Francis Marion Etheridge and Joseph Manson McCormick, both of Dallas Tex. (Henri Louie Bromberg, of Dallas, Tex., on the brief) for appellant.

Oscar L. Stribling and Marshall Surratt, both of Waco, Tex. (J. F Brinkerhoff, of Waco, Tex., on the brief), for appellees.

Before WALKER and BATTS, Circuit Judges, and FOSTER, District Judge.

WALKER Circuit Judge.

This is an appeal from a decree dismissing a supplemental bill filed by the plaintiff in the case of Peter McClelland, Jr., against John K. Rose, trustee, and others. The main case mentioned-- the bill in which asserted the claim that the plaintiff therein was, under the will of his deceased father, Peter McClelland, Sr., entitled to the entire estate of the testator absolutely, or subject to trusts created by the will-- twice before has been in this court. The first appeal was from a decree sustaining a demurrer to the plaintiff's bill and dismissing it. The decree then under review was reversed, and the cause was remanded for further proceedings. McClelland v. Rose, 208 F. 503, 125 C.C.A. 505. The second appeal was from a decree-- rendered on a submission of the cause on the bill as amended, answers, evidence, and objection thereto-- which adjudged that the plaintiff, subject to the trust created by his father's will, was the owner in fee of all and singular the latter's estate, ordered an accounting between John K. Rose, trustee, and the plaintiff, and appointed a commissioner to take testimony and make and state the account decreed. That decree was modified and affirmed by this court. McClelland v. Rose, 222 F. 67, 137 C.C.A. 519. Subsequent to the last-mentioned action of this court, but before the taking and stating of the account provided for in the modified and affirmed decree, a defendant in that suit, John K. Rose, trustee under the will of Peter McClelland, Sr., brought in a court of the state of Texas a suit, in which he sought an injunction against an alleged threatened sheriff's sale of property belonging to the estate of Peter McClelland, Sr.; suggested the names and residences of more than 70 persons, all citizens of states other than California, the state of which Peter McClelland, Jr., is a citizen, who are collateral heirs at law of Peter McClelland, Sr., and who were not named as parties in the above-mentioned suit brought by Peter McClelland, Jr., and submitted to the court 'whether or not all parties claiming as legatees under said will should be made parties hereto and be required to litigate among themselves * * * and have determined by a final adjudication, binding upon all said parties, the construction of said will, and in whom the remainder of said estate is vested, * * * and to whom this trustee shall turn over said property at the expiration of said trust as provided by the terms of said will. ' Pursuant to the quoted and other suggestions made in that suit many persons were made parties to it as collateral heirs at law of Peter McClelland, Sr.; and, under orders made in a cross-action instituted by some of such persons, Peter McClelland, Jr., and two other persons who claimed property which was part of his deceased father's estate under a conveyance or transfer made by Peter McClelland, Jr., were cited to appear in that suit. The cross-petitioners prayed in behalf of themselves and other collateral heirs at law of Peter McClelland, Sr., for judgment establishing their claim to the entire estate of Peter McClelland, Sr., decreeing that Peter McClelland, Jr., and his said transferees or assigns have no interest therein or thereto, and that John K. Rose, trustee, be ordered and directed, upon the expiration of the trust created by the will, viz. at the death of Peter McClelland, Jr., to turn over to the heirs at law of Peter McClelland, Sr., all property of his estate in the possession of such trustee. The above-mentioned supplemental bill-- after setting out the proceedings in the suit brought in the state court, and averring that the institution and prosecution of that suit was in contempt of the jurisdiction of the District Court and of its decree in the case of Peter McClelland, Jr., against John K. Rose, trustee, and others, and was an attempt to involve the plaintiff in the last-named suit and those claiming under him in a relitigation of the identical issues which were involved in that suit, and were finally adjudicated therein-- prayed that the further prosecution of said suit in the state court be enjoined, except in so far as it sought relief against the alleged threatened sheriff's sale of property belonging to the estate of Peter McClelland, Sr.; that the final decree as modified and affirmed by this court be so extended as to embrace by name all persons who are collateral heirs at law of Peter McClelland, Sr.; and for such other special and general relief as in the premises the plaintiff may be entitled to.

It appears from the opinion rendered by the District Judge that the dismissal of the supplemental bill was the result of the conclusion reached that the final decree which was modified and affirmed by this court was without effect against the individuals by and in whose behalf an adjudication against the claim set up by Peter McClelland, Jr., to the entire estate left by his father was sought in the suit brought in the state court. When the suit brought By peter McClelland, Jr., was first in this court, the will of Peter McClelland, Sr., was construed, and it was decided 'that, on the averments of the bill, the plaintiff is the owner of the estate devised and in controversy, subject to the trusts created by the will; that the defendants, testator's collateral kin, have no interest, under the will, in the same; and that the plaintiff, the averments of the bill being admitted or proved, should have a decree to that effect. ' McClelland v. Rose, 208 F. 503, 512, 125 C.C.A. 505, 514. The subsequently rendered decree, as it was modified and affirmed by this court, was to the effect just stated. McClelland v. Rose, 222 F. 67, 137 C.C.A. 519. It is quite obvious that the right of Peter McClelland, Jr., to the entire estate of his deceased father, subject to the trusts created by the latter's will, is no longer subject to be questioned in any court by any one who was bound by the decrees just referred to. The contention made in behalf of the appellant is that the persons by or in whose behalf the claim that they are entitled to the estate of Peter McClelland, Sr., was asserted in the suit in the state court are bound by the final decree in the suit brought by the appellant though they were not by their names made parties to that suit, and did not in person or by attorney appear therein. The opposing contention, which prevailed in the trial court, is that those persons were strangers to the main suit brought by the appellant, and were not affected by the decree therein. These contentions call for a determination of the scope of that suit and a decision as to who is bound by the decree rendered in it.

From the fact that one's name does not appear as a party to a suit in equity, it does not necessarily follow that he is not bound by the result of it. There are cases involving a subject-matter common to a number of individuals in which some only of such individuals, who in fact are representatives of the entire class of which they are members, may be permitted to sue or defend for all, with the result of making the judgment or decree rendered binding upon all having the common interest the same as if all were before the court. Hartford Life Ins. Co. v. Ibs, 237 U.S. 662, 672, 35 Sup.Ct. 692, 59 L.Ed. 1165, L.R.A. 1916A, 765; Wallace v. Adams, 204 U.S. 415, 27 Sup.Ct. 363, 51 L.Ed. 547; Smith v. Swormstedt, 16 How. 288, 14 L.Ed. 942; Mandeville v. Riggs, 2 Pet. 482, 487, 7 L.Ed. 493; Hale v. Hale, 146 Ill. 227, 258, 33 N.E. 858, 20 L.R.A. 247; Society of Shakers v. Watson, 68 F. 730, 15 C.C.A. 632; Stevens v. Smith, 126 F. 706, 61 C.C.A. 624; Equity Rule 38 (198 F. xxix, 115 C.C.A. xxix).

In order for a judgment or decree in a suit to be binding upon others than those who are brought before the court, it should be made to appear from the record in the case that such a result is...