Oxley v. Sweetland

• Decision Date: 04 January 1938
• Docket Number: No. 4220.,4220.
• Citation: 94 F.2d 33
• Parties: OXLEY et al. v. SWEETLAND.
• Court: U.S. Court of Appeals — Fourth Circuit

94 F.2d 33 (1938)

OXLEY et al. v. SWEETLAND.

No. 4220.

Circuit Court of Appeals, Fourth Circuit.

January 4, 1938.

Henry W. Anderson, of Richmond, Va., and Fred O. Blue, of Charleston, W. Va. (Russell W. Morris, of Huntington, W. Va., John F. Ellison, Homer Blizzard, and Charles M. Love, all of Charleston, W. Va., H. L. Ducker, of Huntington, W. Va., Blue, Dayton & Campbell, of Charleston, W. Va., and Hunton, Williams, Anderson, Gay & Moore and Wirt P. Marks, Jr., all of Richmond, Va., on the brief), for appellants.

Charles L. Estep, of Logan, W. Va., and T. C. Townsend, of Charleston, W. Va. (Ira P. Hager, of Logan, W. Va., and W. W. Barrett, of Pikeville, Ky., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This suit was instituted against the administratrix and the various next of kin of Louis R. Sweetland, deceased, late of Hamlin, West Virginia, by plaintiff who claims to be his widow, the purpose of the suit being to determine the right of plaintiff to the personal property of the deceased. Process was served upon those of the next of kin who resided in West Virginia but was not served upon a number residing in other states. A motion to dismiss was sustained as to the nonresident defendants, but was overruled as to the others, who filed answer denying that plaintiff had been married to decedent or was entitled to any part of his property. They pleaded also, as an estoppel against plaintiff, the proceedings for partition of decedent's real estate had in the circuit court of Cabell county, West Virginia, in which it had been adjudicated that there had been no marriage between decedent and plaintiff and that plaintiff was entitled to no share in his real estate. It appeared, however, that the plaintiff had been made a party to the partition proceedings only by service of notice beyond the court's jurisdiction; and this portion of the answer was accordingly stricken, as not constituting matter of defense.

The court below found, after hearing, that plaintiff had been lawfully married to decedent and as his widow was entitled to his personal property. Decree was accordingly entered to that effect as against the resident defendants, excepting, however, from its terms the portion of the property claimed by the nonresidents, and providing that nothing contained therein should in any manner prejudice their rights. Three questions are raised by the appeal: (1) Whether the court had jurisdiction of the cause in the absence of the nonresident defendants; (2) whether the estoppel pleaded in the answer of defendants should have been stricken; and (3) whether the decree was correct upon the merits.

On the first question, it is to be remembered that the suit is one to determine the rights of the parties before the court in the personal property of the decedent. If plaintiff was married to decedent, as she contends, that property, subject to debts and charges of administration, belongs to her. If there was no marriage, it belongs to his surviving brothers and sisters and to the descendants of such as died before he did. Code of W.Va. c. 42, art. 1, § 1, and article 2, § 1; Kennedy's Adm'r v. Kennedy, 97 W.Va. 491, 125 S.E. 337. The fact of marriage is a necessary issue in this suit of plaintiff; but the purpose of the suit is, not to establish the marriage, but to determine the right to the property claimed as against adverse claims of the defendants. As such, it is one of which the federal courts have jurisdiction, diversity of citizenship and the jurisdictional amount being present. Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 34, 30 S.Ct. 10, 14, 54 L.Ed. 80; McClellan v. Carland, 217 U.S. 268, 269, 30 S.Ct. 501, 54 L. Ed. 762; Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 313, 73 L.Ed. 669; Cottingham v. Hall, 4 Cir., 55 F.2d 664; Hall v. Cottingham, D.C., 55 F.2d 659. The only jurisdictional question which can arise, therefore, relates to the failure to bring in as parties those of the next of kin upon whom service of process could not be obtained; and we think that the court properly ruled in favor of the jurisdiction, since it is possible to determine the controversy as to the portion of the property in dispute between the parties before the court and by appropriate orders to protect the rights of those whom it was impossible to make parties.

Revised Statutes, § 737, Jud.Code, § 50, 28 U.S.C.A. § 111, provides: "When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not inhabitants of nor found within the district, as aforesaid, shall not constitute matter of abatement or objection to the suit."

And an even broader provision is contained in the Thirty-Ninth Equity Rule, 28 U.S.C.A. following section 723, which is as follows: "In all cases where it shall appear to the court that persons, who might otherwise be deemed proper parties to the suit, cannot be made parties by reason of their being out of the jurisdiction of the court, or incapable otherwise of being made parties, or because their joinder would oust the jurisdiction of the court as to the parties before the court, the court may, in its discretion, proceed in the cause without making such persons parties; and in such cases the decrees shall be without prejudice to the rights of the absent parties."

Referring to this statute and rule in the leading case of Waterman v. Canal-Louisiana Bank & Trust Co., supra, the Supreme Court said:

"This statute and rule permit the court to proceed with the trial and adjudication of the suit, as between parties who are properly before it, and preserves the rights of parties not voluntarily appearing, providing their rights are not prejudiced by the decree to be rendered in the case. This rule has been said to be declaratory of the already-established equity practice. Shields v. Barrow, 17 How. 130, 15 L.Ed. 158; 1 Street, Fed.Eq.Pr. § 533, and cases there cited. This rule does not permit a Federal court to proceed to a decree in that class of cases in which there is an absence of indispensable, as distinguished from proper, or even necessary, parties, for neither the absence of formal, or such as are commonly termed necessary, parties, will defeat the jurisdiction of the court; provided, in the case of necessary parties, their interests are such and so far separable from those of parties before the court, that the decree can be so shaped that the rights of those actually before the court may be determined without necessarily affecting other persons not within the jurisdiction. After pointing out that there may be formal parties, of whose omission the court takes no account, Mr. Justice Miller, in delivering the opinion in Barney v. Baltimore, 6 Wall. 280, 18 L.Ed. 825, went on to say: `There is another class of persons whose relations to the suit are such that, if their interest and their absence are formally brought to the attention of the court, it will require them to be made parties, if within its jurisdiction, before deciding the case; but, if this cannot be done, it will proceed to administer such relief as may be in its power between the parties before it. And there is a third class whose interests in the subject-matter of the suit and in the relief sought are so bound up with that of the other parties that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction.'

"The relation of an indispensable party to the suit must be such that no decree can be entered in the case which will do justice between the parties actually before the court without injuriously affecting the rights of such absent party. 1 Street, Fed. Eq.Pr. § 519.

"If the court can do justice to the parties before it without injuring absent persons, it will do so, and shape its relief in such a manner as to preserve the rights of the persons not before the court. If necessary, the court may require that the bill be dismissed as to such absent parties, and may generally shape its decrees so as to do justice to those made parties, without prejudice to such absent persons. Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260."

We see no reason why the court cannot determine, as between plaintiff and those of the next of kin who have been made parties, the right to that portion of the property claimed by such next of kin, without determining the right to the portion claimed by the others. It is true that in making the determination the court must pass upon a question of fact in which the absent claimants are interested, but their rights in the property will be in no manner affected by the determination or finding, which will be binding only upon the parties before the court. If the situation were reversed so that plaintiff as claimant of the entire property were being sued by one of the nonresident next of kin to establish rights in the property, it would hardly be contended that the court would lack jurisdiction because all of the other next of kin were not parties. See Payne v. Hook, supra. We see no difference in the principle to be applied because the one claiming the entire property is the plaintiff instead of the defendant. In either case, it is only the interest which is in controversy between the parties before the court which can be adjudicated, and in neither can anything...