Thurber v. Miller

• Decision Date: 18 April 1895
• Docket Number: 523.
• Citation: 67 F. 371
• Parties: THURBER v. MILLER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 371

THURBER v. MILLER et al.

No. 523.

United States Court of Appeals, Eighth Circuit.

April 18, 1895

This suit was commenced in the circuit court of Lawrence county S.D., by Horace K. Thurber, appellant, against Mary C Miller, Arthur James Miller, and Thurber Chumasero Miller, as heirs at law of James K. P. Miller, deceased and Joseph Swift, E. B. Beecher, and William H. Swift, executors of the estate of James K. P. Miller, deceased, Addison W. Hastie trustee, Fred T. Evans, the city of Deadwood, and Lawrence county, S.D., to foreclose a mortgage made by James K. P Miller, in his lifetime, to the plaintiff, on certain real estate in Deadwood, S.D. The bill averred that default had been made in payment of the mortgage debt, which it was alleged amounted to $61,900, and concluded with the usual prayer for a decree and sale of the mortgaged premises. Fred T. Evans, on his own motion, was made a party defendant to the suit. In his petition to be made a defendant he stated that the defendant Addison W. Hastie was a trustee in a mortgage executed by James K. P. Miller to him; that the mortgage was given to secure payment of a promissory note for the sum of $7,850 made by the mortgagor Miller to Evans; that 'Evans is the sole beneficiary of said mortgage, and that the same was taken in the name of Addison W. Hastie, trustee for said Evans, and for no other person; that the plaintiff herein, Horace K. Thurber, alleges in his complaint that the said mortgage is subject to, and inferior in right to, plaintiff's mortgage, and has made the said Addison W. Hastie, trustee, a party defendant for the purpose of determining the priority between the said two mortgages; that the claim of the plaintiff in this action is made adversely to the rights of said Fred T. Evans, and he therefore desires to litigate the question directly with him. ' An order was entered on the 29th of August, 1891, making Evans a defendant. An amended bill was afterwards filed, which made Evans a defendant. In this state of the record, Evans, on the 2d day of October, 1891, filed his petition to have the cause removed to the circuit court of the United States, alleging as the sole ground for the removal: 'That there is in said suit a controversy which is wholly between citizens of different states, and which can be fully determined as between them, to wit, a controversy between your said petitioner, who avers that he was at the time of the bringing of this suit, and still is, a citizen of the state of South Dakota, and the said plaintiff, Horace K. Thurber, who, as your petitioner avers, was then, and still is, a citizen of the state of New York. That the said controversy is of the following nature, namely: Said action is brought by plaintiff against said defendants for the foreclosure of a certain mortgage alleged to have been executed by said James K. P. Miller in his lifetime to said plaintiff' on the lands described in the bill, to secure the payment of certain debts therein set forth, and that the plaintiff alleges that his mortgage is senior and superior 'to a certain mortgage made, executed, and delivered to A. W. Hastie, as trustee for this petitioner by said James K. P. Miller, and covering and including the same real estate, to secure the payment of a certain promissory note made and delivered to said Miller by this petitioner, dated November 26, 1888, for the sum of $7,850, due two years after date. This defendant will insist and show to the court that the lien of his mortgage is prior and superior to that of the plaintiff. ' Upon the filing of this petition, the state court made an order for the removal of the cause into the circuit court of the United States, and upon filing a transcript of the record in that court the cause progressed to a final decree of foreclosure, and also a final decree as to the disposition of certain rents and issues of the mortgaged property, from which last decree an appeal was taken to this court.

Norman T. Mason (Eben W. Martin, on the brief), for appellant.

G. C. Moody (Edwin Van Cise and Granville G. Bennett, on the brief), for appellees.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

CALDWELL Circuit Judge, after stating the case as above.

Upon opening the record in this cause, it is apparent that the circuit court never acquired jurisdiction thereof. The petition for the removal shows no ground for the removal of the cause from the state court to the United States circuit court. The defect of jurisdiction was not brought to the attention of the circuit court by a motion to remand the cause to the state court, or otherwise, nor has it been called to the attention of this court by counsel; but it is our duty, under the law, to examine the record, and, if it appears that the circuit court never acquired jurisdiction of the cause, to remand it to the state court. Barth v. Coler, 9 C.C.A. 81, 60 F. 466; Railway Co. v. Swan, 111 U.S. 379, 383, 4 Sup.Ct. 510; Burnham v. Bank, 10 U.S.App. 485, 3 C.C.A. 486, 53 F. 163; Railway Co. v. Twitchell, 8 C.C.A. 237, 59 F. 727; Mattingly v. Railroad Co., 15 Sup.Ct. 725; Koenigsberger v. Mining Co., 15 Sup.Ct. 751. This is an ordinary suit in equity to foreclose a mortgage on real estate. The bill makes the heirs and executors of the mortgagor and the creditors of the mortgagor having, or claiming to have, liens on the mortgaged premises, defendants; alleges the amount of the mortgage debt, that default has been made in the payment thereof; and prays for a decree for the amount of the debt, and for the sale of the mortgaged premises to satisfy the same. The creditors of the mortgagor having liens on the mortgaged premises are made defendants for the purpose of barring their equity of redemption, and as to them the allegation of the bill is as follows:

'Plaintiff further states, on information and belief, that the defendants Addison W. Hastie, Fred T. Evans, Lawrence county, and the city of Deadwood, have, or claim to have, some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said mortgage.'

A bill for the foreclosure of a mortgage which asks for a decree for the amount of the mortgage debt, and the sale of the mortgaged premises to satisfy the same, and alleges that the lien of the complainant's mortgage is prior and superior to the liens of some of the defendants named in the bill, presents but a single cause of action. The ascertainment of the relative rank of the liens is incidental to the main purpose of the suit. 'The cause of action is the subject-matter of the controversy, and that is for all the purposes of the suit, whatever the plaintiff declares it to be in his pleadings. ' Railroad Co. v. Ide, 114 U.S. 52, 56, 5 Sup.Ct. 735; Torrence v. Shedd, 144 U.S. 527, 530, 12 Sup.Ct. 726. The statement of the rule in Dillon on Removals is fully supported by the authorities. The learned author says:

'If there be but one cause of action, involving many defendants, the fact that each makes a separate defense does not make separable controversies, nor does the default or disclaimer of one of the defendants give a right of removal to the other. * * * Thus, if the separate answers filed by the individual defendants in a suit for the foreclosure of a mortgage raised distinct issues in defending against the one cause of action, this will not create separate controversies, within the meaning of the act. ' Dill. Rem. Causes, Secs. 40, 43.

It was open to the lien creditors of the mortgagor who were made defendants to the bill to set up such defenses to the plaintiff's claim of priority of lien as they might severally have. One might deny the validity of the plaintiff's mortgage, another might allege that it had been paid; and a third, as was done by the defendant Evans in this case, that it was junior to the lien of his mortgage. The effect of these different answers would be simply to put in issue the allegation of the bill that the complainant had a valid and paramount lien on the mortgaged premises. Defendants cannot divide or multiply a plaintiff's single cause of action. Separate defenses do not, therefore, constitute separate or different causes of action, or create separable controversies, but are merely separate defenses to the same cause of action, to the complete determination of which the mortgagor, or his proper representatives, are indispensable parties. Ayres v. Wiswall, 112 U.S. 187, 5 Sup.Ct. 90. In the case of Rosenthal v. Coates, 148 U.S. 142, 147, 13 Sup.Ct. 576, the supreme court, affirming decisions to the same effect, said:

'The suit was, in effect, one by the assignee to disincumber this fund in his possession of alleged liens, and the fact that each defendant had a separate defense to this claim did not create separable controversies.'

The case made by the bill is one that cannot be finally determined, and the relief sought obtained, without the presence of the heirs and executors of the mortgagor; and it makes no difference whether they admit or deny the rights of the complainant,-- their presence is nevertheless indispensable to the complete determination of the controversy. The issue raised by the answer of the defendant Evans is not, therefore, a controversy which can be fully determined between him and the plaintiff, and for this reason the cause was not removable. Wilson v. Oswego Tp., 151 U.S. 56, 66, 14 Sup.Ct. 259. The principle applicable to the case at bar is clearly stated by the supreme court in the case of Torrence v. Shedd, supra, as follows:

'Accordingly, in a suit by a judgment creditor to have the property of his debtor sold and applied to the payment of his debt, after satisfying prior incumbrances thereon, the holders of which

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