Wabash, St. L. & P. Ry. Co. v. Central Trust Co.

• Decision Date: 20 March 1885
• Citation: 23 F. 513
• Parties: WABASH, ST. L. & PAC. RY. CO. v. CENTRAL TRUST CO. OF NEW YORK and others. (Two Cases. [1] CENTRAL TRUST CO. OF NEW YORK and another v. WABASH, ST. L. & PAC. RY. CO. and others. (FN1)
• Court: U.S. District Court — Eastern District of Missouri

23 F. 513

WABASH, ST. L. & PAC. RY. CO. v. CENTRAL TRUST CO. OF NEW YORK and others. (Two Cases. ^[1]

CENTRAL TRUST CO. OF NEW YORK and another v. WABASH, ST. L. & PAC. RY. CO. and others. (FN1)

United States Circuit Court, E.D. Missouri.

March 20, 1885

John F Dillon, Henry T. Kent, Wager Swayne and Greene, Burnett &amp Humphrey, for the Wabash, St. L. & Pac. Ry. Co.

Phillips & Stewart, for the Central Trust Co.

John I Brown and Thos. J. Portis, for the St. Louis, I.M. & S. Ry Co.

BREWER J., (orally.)

In these cases, which were argued yesterday, and in which there is a motion made to consolidate, I think I can express my views better by commencing at the rear end of this litigation. The last suit was commenced by the filing of an original bill in the state court, in behalf of the Central Trust Company of New York, a bill of foreclosure, making the Wabash road, and the various mortgagees thereof, parties defendant. That the state court had jurisdiction of that suit is to my mind indisputable, and that it was a case which was removable to this court is equally clear, although some of the parties defendant, one at least, is a citizen of the same state with the complainant, the Central Trust Company; for there is a primary, separable, independent controversy between the Central Trust Company, a citizen of New York, and the Wabash Railroad, a citizen of the state of Missouri, a controversy in respect to the mortgage given by the one to the other. Where there is such a separable, independent controversy between citizens of two states pending in a suit in the state court, either one of the parties to that controversy may file his petition and bond to remove the entire suit to this court, although thereby they bring into this court, if you please, another controversy between citizens of the same state. That is the clear language and scope of the decision in Barney against Latham, 103 U.S. 205; and followed by other causes. In other words, the supreme court there affirmed, as was well said yesterday, the doctrine that where there is in a suit a distinct, separable, independent controversy between citizens of two states, it is a case which may be removed into the federal courts, and the federal courts can take jurisdiction of it, and of the whole of it. In that respect, as said in a late opinion of the supreme court, the jurisdiction of the circuit court is larger than that which can be obtained by an action brought originally here. Hence that case-- the last suit-- is properly in this court; and that this court has jurisdiction of it, with all that is involved, we have no question.

In the foreclosure of a mortgage there is a certain sense in which you may say that the only indispensable parties are the mortgagor and the mortgagee. You can foreclose that mortgage and divest the mortgagor of all his interest, and transfer it by sale into the mortgagee, or any other purchaser, and that without the presence of other incumbrances as parties. And yet we all know that there are certainly proper parties, or may be proper parties, other than the mortgagor and the mortgagee. Subsequent mortgagees, of course, are proper parties in order to cut off any equity of redemption; and while it is laid down in the supreme court of the United States that an independent controversy between the mortgagor and a third party, one involving the question of paramount title, is not to be litigated in a foreclosure suit, yet all those things which simply involve matters of lien on the property, whether prior or subsequent, may, as a general rule, properly be considered in such a suit. Well, that case being one that is properly in this court, a motion is made to consolidate it with a prior case, a...