Stewart v. United States, 16124.

• Decision Date: 05 April 1957
• Docket Number: No. 16124.,16124.
• Parties: Mrs. Louise Bisbey STEWART et al., Appellants, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

242 F.2d 49 (1957)

Mrs. Louise Bisbey STEWART et al., Appellants, v. UNITED STATES of America et al., Appellees.

No. 16124.

United States Court of Appeals, Fifth Circuit.

March 1, 1957.

Rehearing Denied April 5, 1957.

Albert J. DeLange, Houston, Tex., De Lange, Hudspeth & Pitman, C. M. Hudspeth, Eugene J. Pitman, Houston, Tex., for appellants.

Richard C. Peet, Atty., Dept. of Justice, Washington, D. C., Perry W. Morton, Asst. Atty. Gen., S. Billingsley Hill, Atty., Dept. of Justice, Washington, D. C., Malcolm R. Wilkey, U. S. Atty., Houston, Tex., Arthur L. Moller, Asst. U. S. Atty., Houston, Tex., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., for the United States.

Before RIVES, TUTTLE and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

Mrs. Louise Bisbey Stewart et al., claiming to be the owners of mineral interests in lands situated in Galveston County, Texas, brought this action against the United States, Charles E. Wilson, Secretary of Defense, Charles S. Thomas, Secretary of the Navy, Douglas McKay, Secretary of the Interior, and Edward Woozley, Director of Land Management, Department of Interior, all non-residents of the State of Texas, to quiet title to said mineral interests and to cancel certain clouds on their title, and to recover damages for trespass upon said mineral interests. The complaint alleged that the United States had attempted condemnation of the land, but that, for reasons there set forth, the proceedings did not vest title to the oil, gas and other minerals in the United States, and that, if title thereto ever entered the United States, it had been abandoned; but that, notwithstanding said lack of title, the United States, through the individual defendants, was committing trespasses upon said mineral interests and was advertising for bids with the view of selling mineral rights to others.

Summons was served on the United States Attorney and mailed to the Attorney General, and a summons was served on each of the individual defendants by the United States Marshal in Washington, D. C. The United States moved to dismiss the action because of lack of jurisdiction, and each of the individual defendants moved to quash the service and return of the summons served respectively upon him and to dismiss the suit. Briefs were filed and the Court below entered an order dismissing as to the United States, and quashing the service and return of process on each of the individual defendants, but overruling their motions to dismiss. The order also granted leave to plaintiffs to amend.

An amended complaint was filed against the same defendants and, in addition, against the Placid Oil Company, a corporation under the laws of Delaware, authorized to do business in Texas. It was alleged that the original defendants had executed oil and gas leases to the Placid Oil Company, and that said oil company had entered or was about to enter upon the property to drill for, remove and convert to its own use, oil and gas from said land. The amended complaint asked the issuance and service of process on the oil company and a letter to the clerk made a like request, but the record does not disclose whether summons was ever issued or served on the Placid Oil Company and no appearance has been made for it.

The amended complaint prayed that title to the described mineral interests be quieted in plaintiffs, that all clouds and encumbrances be cancelled, that the condemnation proceedings be reviewed and corrected, that the oil and gas leases be cancelled and declared void, and that the parties be enjoined from performing them. The complaint also prayed for the recovery of damages against each of the defendants growing out of the trespasses committed on said property.

With the amended complaint was filed a motion for an order for service on the named government officials under 28 U.S.C.A. § 1655 and Rule 4 of the Federal Rules of Civil Procedure, 28 U.S. C.A. Without the filing of any pleadings to the amended complaint on behalf of any of the defendants,¹ the Court rendered a memorandum opinion upon which judgment was entered, denying the motion for issuance of process under said § 1655, and dismissing the action as against all defendants. Plaintiffs appeal from said order as it relates to each of the defendants, claiming that the Trial Court erred in each and all of the rulings above set forth.

The order appealed from was manifestly right in dismissing the action against the United States. It has not consented to suit in this character of proceeding, and the Court was without jurisdiction and correctly dismissed the suit as far as it sought any judgment against the United States. State of Minnesota v. United States, 1939, 305 U.S. 382, 59 S.Ct. 292, 82 L.Ed. 235; United States v. Shaw, 1940, 309 U.S. 495, 60 S. Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; and Larson v. Domestic & Foreign Commerce Corp., 1949, 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628.²

It is equally plain that the Court's original action was correct in quashing the service and return on each summons as it was sought to be served on each of the government officials. The process of the Court below could be served only in the State of Texas, Rule 4(f), F.R.C.P., and the attempted service in Washington, D. C. was without effect and was properly quashed. Plaintiffs insist that the Court ought to grant them relief of the nature recognized in such cases as United States v. Lee, 1882, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, and Land v. Dollar, 1947, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209, directed towards control of the acts of the individuals assuming to act for the United States. That question might well be before us if the Court had acquired jurisdiction over the individual defendants; but in the absence of such jurisdiction we cannot consider it.

Inasmuch as the rights of the defendants, other than the United States, who may be asserting any title or possessory interest in the lands came through the United States, it is an indispensable party to any relief which might be sought based upon or affecting title to the lands or any interest therein. Leiter Minerals, Inc., v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267, and Anderson v. United States, 5 Cir., 1956, 229 F.2d 675.

It is well settled under the decisions of this Court that no decree can be entered affecting the title to property or cancelling any cloud thereon unless all of the parties interested in the title or in the particular cloud and who will be directly affected by any judgment that may be rendered are properly before the Court. Hudson v. Newell, 5 Cir., 1949, 172 F.2d 848, and cases cited; Mackintosh v. Marks' Estate, 5 Cir., 1955, 225 F.2d 211, and Estes v. Shell Oil Co., 5 Cir., 1956, 234 F.2d 847. Since the United States is so interested and can not be brought before the Court, no suit can be maintained which seeks to quiet plaintiffs' asserted title or to cancel any asserted cloud thereon.

This holding disposes also of the contention that the Court erred in not ordering the individual non-resident defendants to be brought in by service under the provisions of 28 U.S.C.A. § 1655. That statute provides, by its terms, for bringing in absent defendants only in proceedings in rem such as suits to remove clouds upon title to real or personal property. It cannot be invoked to aid service upon absent defendants sued in personam.³ Since the in rem features of this suit may not be pursued because of the absence of an indispensable party, the statute has no application.

It does not appear that Placid Oil Company was...