Mosher v. The City of Phoenix, Civil 3106

• Citation: 7 P.2d 622,39 Ariz. 470
• Decision Date: 08 February 1932
• Docket Number: Civil 3106
• Parties: H. L. MOSHER, Appellant, v. THE CITY OF PHOENIX, a Municipal Corporation, Appellee
• Court: Supreme Court of Arizona

7 P.2d 622

39 Ariz. 470

H. L. MOSHER, Appellant, v. THE CITY OF PHOENIX, a Municipal Corporation, Appellee

Civil No. 3106

Supreme Court of Arizona

February 8, 1932

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Judgment affirmed.

Mr John W. Ray, for Appellant.

Mr Charles A. Carson, Jr., City Attorney, and Mr. James E Nelson, Assistant City Attorney, for Appellee.

OPINION

LOCKWOOD, J.

On August 22, 1928, the city of Phoenix, a municipal corporation, hereinafter called appellee, adopted an ordinance declaring its intention to order the widening of Van Buren Street from Sixteenth Street to Central Avenue, describing the improvement and the land necessary and convenient to be taken therefor, stating that the improvement was "of more than local or ordinary public benefit" and that the expense should therefore be chargeable upon a district, and specifying the boundaries of the district to be benefited by said improvement and to be assessed to pay therefor in proportion to the benefits to be derived. It was expressly provided that such improvement should be made under the provisions of chapter 20, Session Laws of 1915, and chapter 107, Session Laws of 1927, and the amendments thereto.

In order to widen the street, it was necessary that certain real estate described in such ordinance be condemned by appellee. Suit was therefore filed in the superior court of Maricopa county in which appellee was named as plaintiff and several hundred persons and corporations as defendants. Among these defendants were H. L. Mosher, a resident of Phoenix, hereinafter called appellant, and James Dean Collins, a citizen of the state of Oregon. The complaint prayed that defendants be required to set forth the nature and extent of their several estates in the lands sought to be condemned, that such interest and the value of each and every separate estate in said lands and the damages accruing to the respective owners of such estates by reason of the condemnation proceedings be adjudged and determined, and that, upon payment of the damages so ascertained to the said defendants or into court for their benefit, the court make and enter a final judgment condemning the lands so described for the public improvement set forth in the ordinance.

Appellant answered, setting up that the acts of the legislature above referred to were unconstitutional, and that the proposed improvement was unnecessary, and demanded a jury trial upon the extent of the damage to her property. This was granted. Some time apparently thereafter James Dean Collins presented his petition for removal of the action to the United States District Court for the district of Arizona, under title 28, section 71, U.S.C.A. An order was made certifying the case to the District Court in pursuance of the petition so far as the same applied to the defendant James Dean Collins only, and the court proceeded to a hearing as against appellant. The jury returned a verdict finding the damages accruing to appellant's property by reason of the proposed widening of the street was $10,000, and judgment was rendered on the verdict. After the usual motion for a new trial was overruled, appellant brought the matter before us for review.

The first question which we consider is the contention of appellant that the petition and order of removal to the federal District Court above referred to had the effect of removing the entire case to such court, and that the state court was powerless to proceed further with it as against any of the defendants. It does not appear from the abstract of record whether this point was suggested to the trial court in advance of the trial, but we consider the matter as though the objection was made seasonably. Removal of suits from state courts to the federal court is governed primarily by title 28, section 71, U.S.C.A., supra, and the question of whether such removal takes with it the entire case, so that the state court loses jurisdiction to proceed as against other defendants than those petitioning for removal, has been before the federal courts several times. Appellant urges that this matter has been definitely concluded by the Supreme Court of the United States in the case of Barney v. Latham, 103 U.S. 205, 26 L.Ed. 514, wherein the court says:

"Rather than split up such a suit between courts of different jurisdictions, Congress determined that the removal of the separable controversy to which the judicial power of the United States was, by the Constitution, expressly extended, should operate to transfer the whole suit to the Federal court."

Were there nothing further, it would seem that this would determine the issue in favor of appellant. The court, however, continues further, as follows:

"It may be suggested that if the complaint has united causes of action, which, under the settled rules of pleading, need not, or should not, have been united in one suit, the removal ought not to carry into the Federal court any controversy except that which is wholly between citizens of different States, leaving for the determination of the State court the controversy between the plaintiffs and the land company. We have endeavored to show that the land company was not an indispensable party to the controversy between the plaintiffs and the defendants, citizens of New York, Wisconsin, and Massachusetts. Whether those defendants and the land company were not proper parties to the suit we do not now decide. We are not advised that any such question was passed upon in the court below. It was not discussed here, and we are not disposed to conclude its determination by the court of original jurisdiction, when it is therein presented in proper form. A defendant may be a proper, but not an indispensable party to the relief asked. In a variety of cases it is in the discretion of the plaintiff as to whom he will join as defendants. Consistently with established rules of pleading he may be governed often by considerations of mere convenience; and it may be that there was, or is, such a connection between the various transactions set out in the complaint as to make all of the defendants proper parties to the suit, and to every controversy embraced by it; at least, in such a sense as to protect the complaint against a demurrer upon the ground of multifariousness or misjoinder."

From this counsel for appellee argue that it might reasonably be inferred it was only in cases where all the defendants were, under the ordinary rules of pleading, if not indispensable, at least proper, parties to the action, that the whole case was removed.

In the later case of Union Pacific Ry. Co. v. City of Kansas, 115 U.S. 1, 29 L.Ed. 319, 5 S.Ct. 1113, the city had brought condemnation proceedings against the railway company and many other persons jointly for the purpose of widening a street, and it was urged that on a valid petition for removal by the railway company alone, if the whole case must be removed, it would cast upon the federal court an administrative function in local matters for which it lacked jurisdiction. The court said:

"Now this controversy . . . is a distinct controversy between the company and the city. It may be settled in the same trial with the other appeals, and by a single jury; but the controversy is a distinct and separate one, and is capable of being tried distinctly and separately from the others. If the state circuit had equity powers, it might direct a separate issue for the trial of this controversy by itself. It might try the other appeals without a jury (the parties waiving a jury), and try this controversy by a jury.

"If this view of the subject is correct, we see no difficulty in removing the controversy between the city of Kansas and the railway company for trial in the circuit court of the United States. . . . The indirect effect upon the general proceedings for widening the street which would ensue in case the federal court should determine that the city of Kansas had no right to widen the street in the company's depot grounds, or that the valuation of its property was much too small, or the assessment for benefits against it was much too large, furnishes no good reason for depriving the company of its right to remove its suit into a United States court."

And the suit was removed so far as the railway company only was concerned. Apparently the court of last resort has not further clarified the issue, but since these two decisions the lower federal courts have several times considered the matter.

The case of City of Chicago v. Hutchinson, 15 F. 129, decided by the Circuit Court of the Northern District of Illinois some time after the two decisions above cited, was one for the condemnation of land for the opening of a street, and it was held that a petition for removal on the part of one defendant did not carry with it the whole suit, but left all of the other parties subject to the usual process of the state court. In the case of In re Stutsman County, N.D., (C.C.) 88 F. 337, suit was brought for the collection of delinquent taxes, and as provided by the statute, all of the delinquent taxpayers were included in the one proceeding of the county. It was held that although in form it was one action, as a matter of fact the different parties defendant did not have a "separable controversy," but rather a "separate suit," and the court said:

"It is urged, in support of the motion to remand, that, if this court takes jurisdiction of the matter removed, it will necessarily bring into this court the entire proceeding which was presented to the state court. That, however, is not the case. As already stated, the proceeding which has been removed is, to all intents and purposes, a separate suit, and as to all parcels of...