Taylor v. Smith

• Decision Date: 03 May 1948
• Docket Number: No. 9507.,9507.
• Citation: 167 F.2d 797,12 ALR 2d 1
• Parties: TAYLOR v. SMITH.
• Court: U.S. Court of Appeals — Seventh Circuit

12 ALR 2d 1, 167 F.2d 797 (1948)

TAYLOR v. SMITH.

No. 9507.

Circuit Court of Appeals, Seventh Circuit.

May 3, 1948.

Ira J. Covey, of Peoria, Ill., for appellant.

F. B. Brian, of Toulon, Ill. and Harry C. Heyl, of Peoria, Ill., for appellee.

Brian & Wilson, of Toulon, Ill., counsel for defendants-appellees.

Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.

KERNER, Circuit Judge.

This is an action by plaintiff, a resident of Illinois, against defendants, also residents of Illinois, in which plaintiff seeks only to partition one hundred acres of land located in Peoria County, Illinois. In the District Court defendants asserted that under the allegations of the complaint, the court lacked jurisdiction, and moved to dismiss the complaint. The court sustained the motion and dismissed the complaint.

Concededly, no diversity of citizenship exists. Nevertheless, plaintiff contends that the court had jurisdiction because, so it is said, the matter in controversy arises under a law of the United States, hence there is federal jurisdiction under 28 U.S.C.A. § 41(1), which authorizes the federal district courts to try "suits of a civil nature" where the matter in controversy "arises under the Constitution or laws of the United States."

To bring a case within the statute the right created by the laws of the United States must be an essential element of plaintiff's cause of action. The right must be such that it will be supported if the laws of the United States are given one construction or effect, and defeated if they receive another. But a genuine and present controversy, not merely a possible or conjectural one, must exist with reference thereto. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70.

In our case the complaint alleged that plaintiff was the owner of an undivided one-third interest, in fee simple, of the land described, the title to which he obtained through a sale made by a trustee in bankruptcy, and that there was involved a federal question under § 70 of the Bankruptcy Act, 11 U.S.C.A. § 110.

There was, however, no request for the construction of any law of the United States; the complaint, as already noted, prayed only for partition of the land. In such a situation the mere fact that the title to the land was obtained from a trustee in bankruptcy does not create the existence of a federal question. Avery v. Popper, 179 U.S. 305, 21 S.Ct. 94, 45 L.Ed. 203. Setting out the source of plaintiff's title was unnecessary, and the allegation that the title came from a trustee in bankruptcy did not, for that reason merely, raise a federal question. Joy v. City of St. Louis, 201 U.S. 332, 340, 26 S.Ct....