Redditt v. Hale, 14159.

• Decision Date: 17 October 1950
• Docket Number: No. 14159.,14159.
• Citation: Redditt v. Hale, 184 F.2d 443 (8th Cir. 1950)
• Parties: REDDITT et al. v. HALE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

184 F.2d 443 (1950)

REDDITT et al. v. HALE et al.

No. 14159.

United States Court of Appeals Eighth Circuit.

October 17, 1950.

Thomas F. Turley, Jr., Memphis, Tenn. (Hal B. Mixon, Marianna, Ark., on the brief), for appellants.

Joe C. Barrett, Jonesboro, Ark. (Charles Frierson, Berl S. Smith and Archer Wheatley, all of Jonesboro, Ark., on the brief), for appellees.

Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.

THOMAS, Circuit Judge.

This is an appeal by plaintiffs from an order sustaining a motion of defendants to dismiss the complaint for want of jurisdiction. Jurisdiction was predicated upon diversity of citizenship and a demand for judgment in the amount of $142,200. The complaint alleges that plaintiffs are all residents and citizens of Shelby County, Tennessee, and defendants are residents and citizens of Crittenden County, Arkansas, or foreign corporations domesticated and doing business in Arkansas.

In 1924 Aquilla Redditt, Ernest Redditt, James Williford Redditt and Mildred Ion Redditt inherited from their deceased mother 1187 acres of land in Crittenden County, Arkansas. In the same year the four children were adjudged to be of unsound mind by the probate court of Tennessee, and a guardian was appointed for them. In 1949 Ernest Redditt died and plaintiff Bennett H. Hurt is now guardian of the persons and estates of the three living owners of the land in Arkansas and the qualified administrator of the estate of Ernest Redditt, deceased.

By appointment of the probate court of Crittenden County, Arkansas, defendant James C. Hale is curator of the estates of plaintiffs in Arkansas, succeeding Howard Curlin, deceased.

Defendant Kathleen Kirk Williford is the executrix of the estate of J. E. Williford, deceased, by appointment of the probate court of Crittenden County, Arkansas.

Defendant Fidelity and Casualty Company of New York was surety on the bond of Howard Curlin, predecessor curator of defendant Hale; and defendant National Surety Corporation of New York is surety on the curator's bond of defendant Hale.

For their cause of action plaintiffs allege that during the 17 years from 1933 through 1949 defendants have failed to pay to plaintiffs the fair and reasonable rental value of plaintiffs' land in Arkansas in the amount of $142,200, for which judgment is demanded "Against the individual defendants and each of them * * *." The prayer of the complaint asks, also, that defendants be enjoined from "occupying, molesting or in anywise dealing with the Crittenden County lands of the complainant heirs" and from taking any further steps in the probate court of Crittenden County, Arkansas, or from filing other suit or action relative to the subject matter of this suit. A decree against the corporate defendants is demanded in the amount of their bonds only.

The motion to dismiss alleges want of jurisdiction on the ground "that the subject matter of this litigation is now in the jurisdiction of the Probate Court of Crittenden County, Arkansas, which court appointed Defendant Hale as curator, and which court has had supervision over the curatorship since June 7, 1934 * * *", and in which court there is "a petition pending for accounting of the curator and removal of property to the domicile of the wards * * *." In brief, defendants contend (1) that the cause of action alleged in the complaint is exclusively within the jurisdiction of the probate court of Crittenden County, Arkansas, and (2) that this suit is barred because there is "another action pending" in the probate court of Crittenden County, Arkansas, involving the same parties and the same cause of action.

The court in ruling upon the motion to dismiss filed no opinion disclosing upon which alleged ground, or both, the motion to dismiss was sustained.

A further difficulty arises from the fact that the complaint is in one count. Apparently the liability, if any, against the several defendants is not the same. Howard Curlin, who died in 1941, is alleged to have been appointed curator of plaintiffs' lands in Arkansas on January 16, 1933. Defendant Fidelity and Casualty Insurance Company was surety on his $10,000 bond. Defendant James C. Hale was appointed curator December 20, 1941, and National Surety Corporation is surety on his $5,000 bond. Defendant James C. Hale cannot reasonably be held personally responsible for inequitable rentals prior to the date of his appointment as curator. Nor should Kathleen Kirk Williford, under the allegations of the complaint, be held responsible individually for unreasonable and unfair rentals accruing against her husband as tenant prior to his death on July 13, 1949.

It should be observed, also, that in their complaint plaintiffs demand not only a judgment for money against each of the defendants individually, but also for an injunction against each of them, enjoining each of them from taking any further steps in the probate court of Crittenden County, Arkansas, or from proceeding with any other suit or action relative to the subject matter of this suit.

If we assume the sufficiency of the complaint and that proof of its allegations would entitle plaintiffs to the judgment demanded, then the action in the federal court must be abated, in part at least, pending the conclusion of the action brought by plaintiff Hurt as guardian and administrator in the probate court of Crittenden County, Arkansas, against James C. Hale, curator, to recover funds in his custody, to take from Hale the custody of the wards' lands in Arkansas, and to give the custody of such lands to Hurt. In that action, wherein the petition was filed in the probate court on November 2, 1949, Hurt also alleges that the curatorship in Arkansas burdens the estates of his wards with needless expenses and delays the use of their funds for their benefit.

That action was commenced before the present action was brought in the federal court, and so far as the record discloses it is still pending. It is an action quasi in rem. Control of the funds was essential to the jurisdiction of the court to grant the protection to plaintiffs which they sought. Without dismissing that proceeding plaintiffs now contend that the probate court is without jurisdiction. Plaintiffs cannot thus maintain such contradictory positions...