Tug River Coal & Salt Co. v. Brigel

• Decision Date: 07 May 1895
• Docket Number: 249.
• Citation: 67 F. 625
• Parties: TUG RIVER C0AL & SALT CO. v. BRIGEL, et al.
• Court: U.S. Court of Appeals — Sixth Circuit

67 F. 625

TUG RIVER C0AL & SALT CO. v. BRIGEL, et al.

No. 249.

United States Court of Appeals, Sixth Circuit.

May 7, 1895

Thomas F. Hargis (Baxter & Hutcheson, of counsel), for appellant.

Hollister & Hollister and Walter A. DeCamp, for appellees.

Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges.

CLARK District Judge.

This case is now before the court on a question of jurisdiction only, raised for the first time in this court on motion of appellant. The suit is brought to foreclose a mortgage executed by the Tug River Coal & Salt Company to Leo A Brigel, Logan C. Murray, and William C. Ireland, as trustees to secure payment of bonds issued and sold by said company amounting in the aggregate to $30,000 besides accrued interest. The mortgage conveys a tract of land embracing about 20,000 acres, known as the 'Warfield Estate,' with all improvements. Beyond the mortgage debt there were judgments and other claims against the company amounting to a large sum. The relief asked is foreclosure of the mortgage and sale of premises, and other equitable relief, as will appear further on. The question involves the original jurisdiction of the circuit court of the United States for the district of Kentucky, in which the suit was brought. This question alone being now considered, it is only necessary to refer to so much of the record as presents this issue and is material to its decision. The case is one where jurisdiction depends on diverse citizenship of the parties. The caption of the bill, with the allegations as to citizenship, the objects of the suit, and relief sought, are given just as made, as follows:

'Bill of Complaint.

'Leo. A. Brigel and Logan C. Murray, Trustees, Complainants, vs. The Tug River Coal and Salt Company, a corporation created by and existing under the laws of the state of Kentucky; Kentucky & Cincinnati Natural Gas & Fuel Company, a corporation created by and existing under the laws of the state of Kentucky; James D. Barrett, Leo. A. Brigel, A. Lee Barrett, E. G. Piper, John B. Wellman, Lane & Bodley, Nordyeke, Harmon & Company, Gale Brothers, A. H. Hogan, John Mead, Levi A. Ault, and Frank B. Wiborg, Defendants. Bill in chancery to foreclose a mortgage on real estate, for the appointment of a receiver, and for an injunction and equitable relief.

'To the Honorable, the Judges of the Circuit Court of the United States within and for the District of Kentucky: Your orators, Leo A. Brigel and Logan C. Murray, humbly complaining, represent unto your honors: (1) That the said Leo A. Brigel is a citizen of the state of Ohio, and resides in the city of Cincinnati. That Logan C. Murray is a citizen of the state of New York, and resides in the city of New York. That the defendants the Tug River Coal and Salt Company and Cincinnati Natural Gas & Fuel Company are corporations created by and existing under the laws of the state of Kentucky, and are citizens of the state of Kentucky. That the said James D. Barrett is a citizen of the state of Kentucky, and resides in Martin county. That the Christian names of A. Lee Barrett, E. G. Piper, and A. H. Hogan are unknown to complainants, nor do the complainants know the respective residences or places of business of said E. G. Piper, A. H. Hogan, John Mead, and John B. Wellman. That they are ignorant also of the names of the constituent members of the respective firms of Lane & Bodley, Nordyeke, Harmon & Company and Gale Brothers, and do not know the citizenship of their respective constituent members, nor their places of business, excepting that Lane & Bodley is a partnership doing business in the city of Cincinnati, state of Ohio; that Levi A. Ault and Frank B. Wiborg are citizens of the state of Ohio, both residing in Hamilton county, in that state; that Leo. A. Brigel is a citizen of the state of Ohio, and resides in the city of Cincinnati; and that A. Lee Barrett is a citizen of the state of Kentucky, and resides in Martin county, in that state. That all of said parties defendants claim some interest in the land, the subject-matter of this suit, and are made parties defendant hereto in order that, after answering fully the allegations in this bill of complaint contained, they may severally be required to set up such claim as they may respectively have, to the end that, under the sale hereinafter prayed, a good title to the lands described herein may be given to the purchaser, and, all parties being before the court, their respective rights, if any, may be passed upon in one suit, agreeably to the usages and practice of courts of equity. * * * (4) That the said mortgage be foreclosed. That the equity of redemption of the said the Tug River Coal and Salt Company in said property be forever barred and cut off. That an appraisement of the said property be made in conformity with the laws of the state of Kentucky, and that on a day to be fixed by the court the said real estate and property be sold in accordance with the terms of said deed of trust or mortgage, and that out of the proceeds thereof there be paid: First the costs and expenses of this suit, including a reasonable compensation to the said trustees and their counsel; second, the coupons and interest due upon said bonds; third, the bonds themselves, pro rata; fourth, to such other lien holders as may establish their claim and liens in this cause to the order of their respective priorities; and; fifth, the balance, if any, to said the Tug River Coal and Salt Company or its assigns. (5) And for all other and further orders which to your honors may seem meet, and for all other relief to which your orators may be entitled in equity and good conscience, and under the laws and practice of Kentucky, and under the circumstances of the case; and your orators will ever pray.'

It does not admit of question that the defendants are proper and material parties to a bill framed as this is, making the charges and asking the relief which it does. The object is to sell a perfect title, cut off and extinguish all adverse rights or liens, including the judgment creditors' right to redeem, and to settle all questions of priority in the proceeds of sale. Subpoena was served on some of the defendants. Substituted service was had on Piper, Lane & Bodley, Ault, and Wiborg as nonresidents of the district. Others appeared, and no action was taken as to part of the defendants. The suit was dismissed as to Mead and the Gas Company. It does not appear distinctly what the claim of Ault and Wiborg was, beyond the fact that at one time they were holders of some past-due coupons secured by the mortgage. J. D. Barrett, Brigel, and Piper filed petitions in the case, setting up claims as creditors, Brigel and Piper by judgment, and parts of the claims of Brigel and Barrett are for taxes paid for the company, and Brigel's claim was allowed priority over the bonds to the extent of the taxes. The other defendants, except A. Lee Barrett, are shown by the report of the special master to be judgment creditors, with liens on the real estate from the date of judgment. It appears in the record proper that Piper and Lane & Bodley were citizens of Ohio, the latter answering as the Lane & Bodley Company, a corporation of that state. The citizenship of the other defendants alleged to be unknown to complainant does not appear in the record. Their claims were presented to the master, and allowed, doubtless, on copies of the judgments. While not filed as a creditors' bill, formally, the case was so treated, with the usual reference report, and decree ordering sale, and the case comes to this court by appeal.

The complainants' own statement of their case shows that some of the parties defendant, namely, Leo. A. Brigel, Ault, and Wiborg, are citizens of the same state with Brigel, one of the complainants, and that the citizenship of other defendants is unknown, and the question of jurisdiction is thus presented in two aspects. For the purpose of this question Brigel, sued as defendant in his individual right in a bill brought in his right as trustee, occupies the same position as if sued by another person in that right. The jurisdiction depending on diversity of citizenship alone, this must distinctly and affirmatively appear in the record proper. Horne v. George H. Hammond Co., 155 U.S. 393, 15 Sup.Ct. 167; Wolfe v. Insurance Co., 148 U.S. 389, 13 Sup.Ct. 602; Menard v. Goggan, 121 U.S. 253, 7 Sup.Ct. 873; Everhart v. College, 120 U.S. 223, 7 Sup.Ct. 555; Grace v. Insurance Co., 109 U.S. 278, 3 Sup.Ct. 207. In Wolfe v. Insurance Co., Mr. Chief Justice Fuller, delivering the opinion, says:

'It is essential, in cases where the jurisdiction depends upon the citizenship of the parties, that such citizenship, or the facts which in legal intendment constitute it, should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record. It is not sufficient that jurisdiction may be inferred argumentatively from the averments.'

And, as the controversy must be wholly between citizens of different states, each party plaintiff must be competent to sue, and each defendant subject to suit. Smith v. Lyon, 133 U.S. 315, 10 Sup.Ct. 303; Iron Co. v. Stone, 121 U.S. 631, 7 Sup.Ct. 1010; Coal Co. v. Blachford, 11 Wall. 172. In the...