Voss v. Neineber, 4,814.
| Decision Date | 22 July 1895 |
| Docket Number | 4,814. |
| Citation | 68 F. 947 |
| Parties | VOSS et al. v. NEINEBER et al. |
| Court | U.S. District Court — Southern District of Ohio |
Mackoy & Lowman, Howard Douglass, and Champion Muir, for plaintiffs.
William Goebel, for defendants.
The plaintiffs move to remand this case to the superior court of Cincinnati, for the reason that Frank J. Isphording, one of the plaintiffs, who sues as the next friend of the infant plaintiff, John B. Joseph Neineber, is, and was at the commencement of the action, a citizen and resident of the state of Kentucky, of which state the defendants are, and were at the time of the commencement of the action, citizens and residents, and because there is no separable controversy which is wholly between citizens of different states and can be fully determined between them, nor is there any controversy in the action which can be determined without regard to said Frank J. Isphording. The proposition that there is no separable controversy is not pressed, and need not be considered. It is not, in the opinion of the court well founded.
The motion to remand will be overruled, upon the authority of Woolridge v. McKenna, 8 Fed. 668, which cites Williams v. Ritchey, 3 Dill. 406, Fed. Cas. No 17,734, to the point that jurisdiction depends upon the citizenship of the infant, not that of the next friend, where he is a plaintiff; and Wormley v. Wormley, 8 Wheat. 451, to the point that the same is true of a married woman as plaintiff, as is also held in Ruckman v. Land Co., 1 Fed. 367. Judge Hammond refers to the cases of executors, administrators, and trustees, where generally the rule is that the citizenship of the real, and not the nominal, party, governs. So, in Wiggins v. Bethune, 29 F. 51, it was held that, in a suit brought by the next friend of one who is non compos mentis, federal jurisdiction cannot be based on the citizenship of the next friend, as he is only a nominal party.
It is urged for the plaintiff that, under the Ohio statute, the next friend is a real and necessary party, and that the action of an infant must be brought by his guardian or next friend. In support of this contention cases are cited from other states, where it is properly held that the next friend is a necessary party where there is an infant plaintiff or defendant. This is not denied. I suppose that in no case has a suit been brought by a next friend unless it was necessary that it should...
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...(3 Cir. 1962), where it was unnecessary to decide the question. See also Blumenthal v. Craig, 81 F. 320 (3 Cir. 1897) and Voss v. Neineber, 68 F. 947 (W.D. Ohio 1885), decided before the adoption of the Federal Rules of Civil 8 See, e.g., Pennsylvania Fiduciaries Act of 1949, § 305(a), 20 P......
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...in his own name on behalf of the ward. In a suit by a guardian ad litem or next friend, the citizenship of the minor controls. Voss v. Neineber (C.C.) 68 F. 947; Mecom v. Fitzsimmons Drilling Co., It is therefore important to inquire whether any taxing official of California is authorized t......
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