Porter v. Bennison

• Decision Date: 06 March 1950
• Docket Number: No. 3999.,3999.
• Citation: 180 F.2d 523
• Parties: PORTER v. BENNISON et al.
• Court: U.S. Court of Appeals — Tenth Circuit

180 F.2d 523 (1950)

PORTER v. BENNISON et al.

No. 3999.

United States Court of Appeals Tenth Circuit.

March 6, 1950.

I. H. Spears, Detroit, Mich. (Thomas Campbell, Denver, Colo. on the brief) for appellant.

S. M. True, Denver, Colo. (G. E. Hendricks, Julesburg, Colo. on the brief) for appellees.

Before PHILLIPS, Chief Judge, and BRATTON and PICKETT, Circuit Judges.

BRATTON, Circuit Judge.

This appeal is from the judgment of the United States Court for Colorado dismissing for want of jurisdiction an action instituted by Hereford B. Porter against Warren R. Bennison, Margarette Bennison, Lennette E. Bennison, G. W. Hendricks, individually and as administrator of the estate of George W. Mattingly, deceased, and First Trust Company of Lincoln, Nebraska.

It was alleged in the amended complaint that plaintiff was a citizen of Michigan; that defendants were citizens of Nebraska and Colorado; and that the amount in controversy was in excess of $3,000, exclusive of interests and costs. It was further alleged that George W. Mattingly, a Negro, died in 1924, leaving Jeannette Miller Breckenridge as his sole heir; that Jeannette Miller Breckenridge died in 1934, leaving plaintiff as her sole heir and beneficiary of the estate of Mattingly; that nineteen days prior to the death of Mattingly, and at a time when he was unconscious and sick unto death, Charles W. Bennison and I. T. McCaskey, white men, prepared and took to his room a paper purporting to be a will; that they took his hand and placed a mark on the paper as his signature; that under the terms of the will, the entire estate of Mattingly was devised and bequeathed to Bennison and McCaskey; that the will was fraudulently presented to the probate court of Butler County, Nebraska, for probate; that its admission to probate was brought about by false and fraudulent testimony; and that Charles C. Croswaithe was appointed administrator of the estate with the will annexed. It was further alleged that at the time of his death, the decedent owned certain lands in Sedgwick County, Colorado; that a certified copy of the will and the probate proceedings in Nebraska were filed in the county court of Sedgwick County, Colorado; that George W. Hendricks was appointed administrator of the estate in that state; that Croswaithe and Hendricks, with notice of the fraud inhering in the execution of the purported will and in the probate proceedings, took possession of money and property belonging to the estate and appropriated large amounts thereof to their own use and benefit; that the First Trust Company acted under the will with notice of the fraud; and that the rights asserted by the other defendants were acquired with notice of the fraud or with sufficient information to put the parties on notice thereof. It was further alleged that Jeannette Miller Breckenridge was not served with process in connection with the probate proceedings and did not have any notice thereof; and that plaintiff did not discover the fraud until less than three years prior to the institution of the action. And it was further alleged that the defendants, acting under color of state law, had deprived plaintiff of his property in violation of the Constitution of the United States and of certain federal statutes; and that the action was one arising under the Constitution and laws of the United States. The prayer was for judgment declaring defendants to be constructive trustees ex maleficio for the benefit of plaintiff; directing conveyance of the described lands to plaintiff; quieting title in plaintiff; an accounting; or in the alternative; damages.

It is contended that under Title 28, section 1331 of the United States Code Annotated, the court had jurisdiction of the action. The statute provides that the district courts shall have original jurisdiction of all civil actions arising under the Constitution or laws of the United States, and having more than $3,000 involved, exclusive of interest and costs. But not every question of federal law lurking in the background or emerging necessarily places the suit in the class of one arising under the Constitution or laws of the United States, within the meaning of the statute. A suit having for its purpose the enforcement of a right which finds its origin in the Constitution or laws of the United States is not necessarily and for that reason alone one arising under such laws. In order for a suit to be one arising under the Constitution or laws of the United States, it must really and substantially involve a dispute or controversy in respect of the construction or effect of a provision in the Constitution or the validity, construction, or effect of an Act of Congress, upon the determination of which the result depends. A right or immunity created by the Constitution or laws of the United States must be an essential element of plaintiff's cause of action, and the right or immunity must be such that it will be supported if one construction or effect is given to the Constitution or laws of the United States and will be defeated if another construction or effect is given. And a genuine present controversy of that kind must be disclosed upon the face of the complaint. Shulthis v. McDougal, 225 U.S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70; Regents of New Mexico College of Agriculture & Mechanic Arts v. Albuquerque Broadcasting Co., 10 Cir., 158 F.2d 900; Andersen v. Bingham & Garfield Railway Co., 10 Cir., 169 F.2d 328. Laying aside the allegations contained in the amended complaint which were mere conclusions of law, it is manifest that the...