Nelson v. Camp Mfg. Co., Civ. A. No. 673.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: M. W. Seabrook, of Sumter, S. C., for defendant
• Citation: 44 F. Supp. 554
• Parties: NELSON v. CAMP MFG. CO. et al.
• Docket Number: Civ. A. No. 673.
• Decision Date: 20 April 1942

44 F. Supp. 554

NELSON v. CAMP MFG. CO. et al.

Civ. A. No. 673.

District Court, E. D. South Carolina, Charleston Division.

April 20, 1942.

COPYRIGHT MATERIAL OMITTED

Nelson, Mullins & Grier, of Columbia, S. C., and Charlton DuRant, of Manning, S. C., for plaintiff.

M. W. Seabrook, of Sumter, S. C., for defendant.

TIMMERMAN, District Judge.

This is a motion to remand. The case as it now stands is the composite of two cases originating in the state court and consolidated by order of the state court before the removal proceedings were instituted. For the purposes hereof they will be referred to as the first case and the second case.

The first case was brought in August, 1936, by Francis Beidler, II, and Mrs. Elizabeth L. Beidler as sole directors and liquidating trustees of Santee River Cypress Lumber Company, a South Carolina corporation, against Andrew English, W. S. Nelson and Brooklyn Cooperage Company, in the Court of Common Pleas for Clarendon County, South Carolina.

Shortly thereafter an order was entered in the state court restraining the defendants pendente lite from committing certain alleged trespasses on the small parcel of land, the subject of the suit.

The Santee River Cypress Lumber Company was alleged to have been then in process of liquidating under applicable statutes of the State of South Carolina, with the Beidlers as its sole directors and liquidating agents.

The demand of the plaintiff was for judgment against the two first-named defendants for $2,000 as damages for alleged trespasses on the said parcel of land containing 23½ acres, more or less. No judgment was asked against the third defendant, Brooklyn Cooperage Company.

October 16, 1936 an order was entered in the state court refusing a motion of plaintiffs for a rule of survey. Thereupon the plaintiffs gave notice of intention to appeal to the State Supreme Court. Before the appeal was heard a consent order was entered remanding the cause to the Circuit Court to bring in additional parties and to give the litigants an opportunity to carry through a proposed compromise settlement of the case. Thereupon an order was entered directing the amendment of the summons and complaint so as to bring in additional parties defendant. Twenty-nine new defendants were added.

In the meantime one of the original defendants, W. S. Nelson, died testate. By an order dated November 25, 1939 his widow, Mrs. Nina Geddes Nelson, was substituted for the testator as party defendant, she being the executrix of his estate and the devisee of his interest in the lands in question. On the same date a decree was entered by which the twenty-nine added defendants, brought in by the amended summons and complaint, were adjudicated to have no interest in the premises in question.

In January 1941 an order was entered, on plaintiffs' motion, to require the defendants and the South Carolina Public Service Authority to show cause why the said Public Service Authority, a local corporation, should not be made a party to said action, and or September 19, 1941 an order was entered making the South Carolina Public Service Authority a party defendant and requiring the summons and complaint to be amended accordingly.

There were other motions and orders entered in the state court from time to time that need not be adverted to.

The second case was commenced sometime prior to June 28, 1941, by Mrs. Nina Geddes Nelson, the defendant substituted for W. S. Nelson in the first case, as plaintiff, against Camp Manufacturing Company, as defendant, for damages for alleged trespasses upon what appears to be the identical tract of land upon which trespasses were alleged in the first case. The summons and complaint in this second case were amended in July, 1941, pursuant to order of the state court, by making the South Carolina Public Service Authority a party defendant therein. The amended complaint alleged no cause of action against the added defendant, only that it was a South Carolina corporation and that it was made a party defendant pursuant to the order of court. The only relief asked by the amended complaint was against the defendant Camp Manufacturing Company for $3,000 damages for an alleged wrongful entry "upon a tract of land owned by and in the possession of the plaintiff herein", and for cutting, carrying away and destroying "timber and other growth thereon."

On August 11, 1941 Elizabeth L. Beidler and Francis Beidler, II, individually, First National Bank of Chicago, as trustee, Francis Beidler, II, as trustee under the last will and testament of Francis Beidler (deceased), and Santee River Cypress Lumber Company, by Francis Beidler, II, and Elizabeth Beidler, as sole directors and liquidating trustees, petitioned to be made parties defendant in said second case and for leave to appear and plead therein. An order was entered September 15, 1941 granting the prayer of said petition and allowing said petitioners twenty days within which to answer, demur, or otherwise plead. The plaintiff, in response to said order, served a second amended summons and complaint, making the named parties defendants but asking no judgment against them or either of them.

As their first move after being made parties defendant in said second case, on the 30th day of September 1941, said defendants Santee River Cypress Lumber Company, by Francis Beidler, II, and Elizabeth L. Beidler, as sole directors and liquidating trustees, Elizabeth L. Beidler and Francis Beidler, II, individually, First National Bank of Chicago, as trustee, Francis Beidler, II, as trustee under the will of Francis Beidler (deceased), filed a petition for the consolidation of the two said cases.

The petitioners, among other things, alleged that the second case, brought by Mrs. Nelson against Camp Manufacturing Company, was "principally a demand for damages for cutting timber on the same premises which are involved in the first action", that the Public Service Authority was in due course made a party defendant in said second case, and that it had "called in all of the remaining defendants therein on an alleged warranty", that said other defendants had "served a petition to be allowed to be made parties", and that they had by order of court been made parties.

They further alleged "that under the facts and circumstances above shown, the situation is the same as if there were another action already pending in this honorable court between the same parties, or their privies, in relation to the same subject matter; for the reason that South Carolina Public Service Authority claims under these petitioners and the other defendants besides Camp Manufacturing Company in the action second above captioned; and these petitioners allege that Camp Manufacturing Company claims under the South Carolina Public Service Authority." Also: "That if either the plea of title or possession set up in the previous action by the Plaintiffs Beidler, or their claim of a settlement is sustained, such will completely defeat the action brought by Mrs. Nina Geddes Nelson against Camp Manufacturing Company, et al.; as either plea is a complete defense to such action, the lands involved in both cases being identical, so far as the alleged trespasses go."

Then in the concluding paragraph of the petition, the petitioners alleged that a consolidation of the two cases would prevent a multiplicity of suits, save costs and conserve the time of the Court, and "That the respective causes of action and defenses pleaded are so allied in substance, time and parties as to make them so akin that they should be consolidated."

Upon this petition an order of consolidation was entered December 12, 1941, directing inter alia (a) that the two actions be "tried together as one action", and (b) "that the second amended * * * complaint heretofore served in the second action shall be the complaint in the consolidated action."

The 18th day of December following said order of consolidation the defendants Francis Beidler, II, Elizabeth L. Beidler, individually, the First National Bank of Chicago, as trustee, and Francis Beidler, II, as trustee under the last will and testament of Francis Beidler (deceased), served and filed their notice and petition for the removal of said cause to the federal court and executed and filed their removal bond.

In the petition for removal the petitioners alleged that the consolidated action was commenced, in so far as they were concerned, with the service of the second amended summons and complaint in the second case on September 17, 1941, that they had not answered and that the time therefor had been extended by order of court until ten days next after December 12, 1941, that the suit was one of a civil nature, being a suit ostensibly for damages, but one which necessarily included the trial of title to and possession of real estate, and that the complaint in the consolidated case alleged "in substance that the defendant Camp Manufacturing Company, without right or warrant of law, entered upon a tract of land owned by and in the possession of the plaintiff herein, and cut down, carried away and destroyed the timber and growth thereon; that the said acts were high-handed, wilful and malicious and in utter disregard and defiance of the rights of the plaintiff, to her damage in the sum of Three Thousand Dollars ($3,000.00) * * *".

Following this the petitioners alleged that Camp Manufacturing Company entered the premises claimed to have been trespassed upon under an authorization from the said Public Service Authority, a domestic corporation; that the Public Service Authority in turn claimed title to the land and the timber alleged to have been wrongfully cut and removed therefrom, under deeds from the petitioners as to the land and from the Brooklyn Cooperage Company as to the timber; that petitioners and Santee River Cypress Lumber Company were bound to defend any action affecting the title to the land conveyed to the Public Service Authority...