Pittsburgh, S. & N.R. Co. v. Fiske

• Decision Date: 08 February 1910
• Docket Number: 82 (1,250).
• Citation: 178 F. 66
• Court: U.S. Court of Appeals — Third Circuit
• Parties: PITTSBURGH, S. & N.R. CO. v. FISKE.

178 F. 66

PITTSBURGH, S. & N.R. CO. v. FISKE.

No. 82 (1,250).

United States Court of Appeals, Third Circuit.

February 8, 1910

George L. Roberts and C. Walter Artz, for appellant.

Fred. H. Ely and George C. Miller, for appellee.

Before GRAY and LANNING, Circuit Judges, and McPHERSON, District Judge.

LANNING Circuit Judge.

By his bill the complainant Fiske, a citizen of the state of New York, declared he was the owner in his own right of the lands described in the bill, and that the defendants, corporate citizens of the state of Pennsylvania, were committing acts of a continuing trespass upon those lands. His prayer was for an injunction. No other relief was sought. After issue had been joined, and while the parties were producing their proofs, the fact was disclosed that between the date of filing the bill and the time of commencing the taking of proofs Fiske, by conveying the lands to the Iroquois Coal Company, a corporate citizen of the state of Pennsylvania parted with all interest in the subject-matter of the litigation. Notwithstanding this fact, the taking of proofs continued, and on final hearing, with no change in the pleadings, a decree was entered awarding to the complainant Fiske, an injunction against the defendants, with costs of suit.

Generally when a complainant, suing in his own right and alone, parts pendente lite with his interest in the subject-matter of the litigation, he cannot further prosecute the suit. It then becomes so defective that, for further prosecution, his grantee or assignee must by appropriate procedure come into the suit, to the end that the complainant on the record shall be one who has a real interest. The usual procedure in such a case is by an original bill in the nature of a supplemental bill. 3 Dan. Ch. Pl. & Pr. (1st Am. Ed.) 1663, 1664; Story's Eq. Pl. Sec. 349; Beach's Modern Eq. Pr. Sec 481; 1 Foster's Federal Practice, Sec. 186. Equity rule 57 recognizes this practice by providing that, whenever a suit in equity becomes defective from any event happening after the filing of the bill, leave may be granted to file a supplemental bill, or a bill in the nature of a supplemental bill. And see Tappan v. Smith, Fed. Cas. No. 13,748; Campbell v. City of New York (C.C.) 35 F. 14; Brown v. Fletcher (C.C.) 140 F. 639; Barribeau v. Brant, 17 How. 43, 15 L.Ed. 34. An assignment by a sole defendant of his interest in a litigation may not defeat a suit. His assignee, taking pendente lite, may be bound by the results of the litigation, if he neglect to come in by an appropriate application. Ex parte Railroad Co., 95 U.S. 221, 24 L.Ed. 355. But in Fulton v. Greacen, 44 N.J.Eq. 443, 15 A. 827, Vice Chancellor Van Fleet said:

'The principle is elementary that a complainant, suing in his own right and alone, cannot, after he has parted with his whole interest in the subject-matter of the litigation, further prosecute the action.'

The record of the present case shows that in an early stage of the taking of proofs for final hearing, while one of the complainant's witnesses was under cross-examination, and while Mr. Roberts, of counsel for defendants, was seeking to elicit from him proof as to the ownership of the lands described in the bill, one of the counsel for the complainant said:

'Mr. Roberts, if you desire, we will admit that Mr. Irving L. Fiske took that property as trustee for these people (Mr. Cartwright and others), and afterwards these people organized the Iroquois Coal Company, and Fiske conveyed this property to the Iroquois Coal Company, and Fisk conveyed

Nearly 200 printed pages of testimony were taken on behalf of the complainant, Fiske, after this disclosure, on the theory, evidently, that, since the title was vested in him when the bill was filed, he could continue to prosecute the case in his own name for the benefit of the Iroquois Coal Company, though it was not a party to the record, though the complainant sustained no relation, fiduciary or otherwise, to it, and though in their answer the defendants had not only denied the ownership of Fiske, but asserted their legal right to do the acts complained of in the bill.

In Brewer v. Dodge, 28 Mich. 359, the bill was dismissed. On appeal, the Supreme Court of Michigan said:

'It appears from complainant's own showing that in June, 1870, he conveyed the premises in dispute to one Charles E. Ritson. Ritson never made himself a party to the suit. By that conveyance complainant ceased to have any further interest in the controversy. If any one was injuriously affected by any subsequent proceedings, it was Ritson, and not complainant. It was no concern of his, after he had sold out all his interest. A court of equity must have the real parties before it, and will not permit a party who has voluntarily divested himself of any claim on his own behalf to continue litigating. As soon as a complainant assigns his rights, the suit as to him ceases, and becomes as defective for want of a complainant as if it had abated by his death. It can only be restored to activity by bringing the rights of the assignee before the court. Webster v. Hitchcock, 11 Mich. 56; Perkins v. Perkins, 16 Mich. 162. The complainant, therefore, was a mere interloper, after the date of his deed, and has no right to complain that his bill was dismissed. He had put himself out of court so far as any rights were concerned. The controversy was no longer his controversy, and the right to pursue it had been terminated as to him by his own act. He could not proceed alone, except for his sole grievances. Whether the decree would have been right or wrong if he had retained his interest, it was unquestionably right to dismiss the bill when the complainant had no interest. He was in the same position then as if his bill had shown on its face that the interest had been parted with before the commencement of suit.'

In Adams Express Co. v. Denver & R.G. Ry. Co. (C.C.) 16 F. 712, Judge McCrary, at page 717, said:

'It has never been held, and cannot, I apprehend, be maintained, that the complainant in a suit may voluntarily transfer all or a part of his interest in the subject-matter of the litigation to a citizen of the same state with the defendant without ousting the jurisdiction.

If this were allowed, it would make it possible in any case for a nonresident plaintiff who has instituted a suit in the federal court to transfer his cause of action to a citizen of the same state with the defendant, and thus bring controversies between citizens of the same state within the federal courts. It was accordingly held in Dunn v. Clarke, supra (8 Pet. 1 (8 L.Ed. 845)), that, while no change in the residence or condition of the original parties can take away jurisdiction which has once attached, yet, 'if other parties are made in the bill and different interests involved, it must be considered, to that extent at least, an original bill, and the jurisdiction of the Circuit Court must depend upon the citizenship of the parties.' If, therefore, we should assume that the cause of action stated in the original bill was assignable, and that the whole or some part of it has been assigned and transferred to Wells Fargo & Co., still this court cannot take jurisdiction of the supplemental bill, because it presents a controversy between two Colorado corporations, and which was not a part of the original suit in the sense of being between the same parties or their privies. My conclusion is that this court cannot take jurisdiction of the supplemental bill for the purpose of enforcing as against the respondent any right of Wells Fargo & Co., either alone or jointly with complainant, and the motion for leave to file the proposed supplemental bill is accordingly overruled.'

In Hoxie v. Carr, Fed. Cas. No. 6,802, where the sole complainant had conveyed to another party, pendente lite, all his interest in the lands described in the bill, Justice Story, while retaining the bill because of the interest of the complainant in other features of the case, said:

'As to the conveyance of the plaintiff, as well as the sheriff's deeds executed pendente lite, if they had disposed of all the rights of the plaintiff, there would certainly have been an end to his bill for a total defect of merits; for it is very clear that no party can stand before the court for a decree who has no further interest in the suit, either formal or real.'

To the same effect are Ross v. City...