An
action in a state court, brought by a mortgagee against his
mortgagors and their creditor, claiming a mortgage lien on
the property to obtain a decree foreclosing his mortgage
fixing the amount of the mortgage debt due and unpaid
adjusting the liens upon the property, and adjudging their
priority, presents but a single controversy.
In such
suit or action, when the plaintiff and defendant mortgagors
are citizens of the state in which the suit is brought, and
the creditor of the mortgagors claiming a mortgage lien on
the property is a citizen of another state, such mortgage
creditor cannot, by a rearrangement of the parties to the
controversy, or otherwise, upon the ground of diverse
citizenship of the parties, remove the case into the federal
court.
Neither
can such suit be removed into the federal court by the
nonresident mortgage creditor of his codefendant mortgagors
on the ground of prejudice and local influence.
H. J
Bone and Hite & Nichols, for the motion.
Botsford
Deatherage & Young, for Boatmen's Bank.
POLLOCK
District Judge.
An
action under the Code was brought in the district court of
Clark county by W. H. Weldon against D. G. Fritzlen and Edna
P. Fritzlen, his wife, to foreclose two mortgages given by
the Fritzlens to plaintiff to secure a promissory note in the
sum of $3,750, one a real estate mortgage, the other a
chattel mortgage. To this action the Boatmen's Bank, a
corporation of Missouri, was made party defendant because of
the fact that said bank held two mortgages prior in point of
time, the one a real estate and the other a chattel mortgage,
on the identical property mortgaged to plaintiff, to secure a
large sum of money owing by the Fritzlens to said bank. The
petition filed in the state court, omitting a description of
the property incumbered, reads as follows:
'The
plaintiff, for his cause of action against the defendants,
says:
'(1)
That on July 2, 1903, the defendants D. G. Fritzlen and
Edna P. Fritzlen, for a valuable consideration, executed
to this plaintiff their promissory note to the sum of
thirty-seven hundred and fifty ($3,750) dollars, which
said note by its terms became due and payable to this
plaintiff on July 12, 1903; that a copy of said note is
hereto attached, marked 'Exhibit A,' and made a
part of this petition; that said note is due and unpaid,
and there is due to this plaintiff on account thereof
from said defendants D. G. and Edna P. Fritzlen the sum
of thirty-seven hundred and fifty ($3,750) dollars.
'(2)
That on July 2, 1903, the defendants D. G. and Edna P.
Fritzlen, for the purpose of securing the payment at
maturity of the note mentioned in paragraph 1 of this
petition, executed to this plaintiff certain mortgages,
by terms of which the said defendants D. G. and Edna P.
Fritzlen conveyed to this plaintiff, as security for
the debt evidenced by said promissory note referred to
hereinbefore as 'Exhibit A,' the following
described personal and real property, to wit: * * *
That all of said real estate is situated in Clark
county, Kansas. That a copy of said mortgages,
conveying to this plaintiff said personal property and
said real property, is hereto attached, and marked
respectively Exhibits 'B' and 'C,' and
made a part of this petition.
'(3)
That the defendant, the Boatmen's Bank, is a
corporation organized and existing under the laws of the
state of Missouri, and has its principal office in the city
of St. Louis, in said state. That said defendant bank has
or claims to have an interest in the personal and real
property, hereinbefore described, by virtue of certain
pretended mortgages which said bank asserts to be liens
upon said personal and real property, but this plaintiff
alleges that the Boatmen's Bank, defendant herein, has
no right, title, or interest in or to any of said personal
or real property; and that whatever interest the said
Boatmen's Bank has or claims to have by virtue of said
mortgages grows out of certain transactions entered into
between said bank and a certain partnership known as Elmore
& Cooper, which said transactions, in so far as they relate
to said mortgage liens, this plaintiff alleges to be wholly
illegal and void. This plaintiff further alleges that the
mortgages which the said Boatmen's Bank asserts are
void, illegal and of no effect. The plaintiff further
alleges that if said Boatmen's Bank has any claim or
right, title, or interest in or to any of said personal or
real property, the same is junior, inferior, and
subordinate to the right, title, interest, and liens of
this plaintiff. That, by virtue of said mortgages executed
to this plaintiff by the said defendants D. G. and Edna P.
Fritzlen, this plaintiff is now the owner and holder of
valid and subsisting liens against said personal and real
property, hereinbefore described, to the amount of
thirty-seven hundred and fifty ($3,750) dollars. That the
said Boatmen's Bank, defendant herein, claiming, as it
does, the legal title to said personal property by virtue
of said pretended, illegal, and void mortgages, is about to
take possession of said personal property and convert same
to its own use, to the irreparable injury of the plaintiff,
as said bank will convey said personal property out of the
jurisdiction of this court.
'Wherefore
this plaintiff prays for judgment against the defendants D.
G. and Edna P. Fritzlen for the sum of thirty-seven hundred
and fifty dollars, ($3,750), and that said judgment may be
declared to be a lien upon all the said personal and real
property hereinbefore described; that upon final decree
that said personal and real property, or so much thereof as
may be necessary, shall be sold for the purpose of
satisfying said judgment; that the mortgage lien of this
plaintiff against said personal and real property be
decreed to be a first lien thereon; that upon the sale of
said property that the proceeds thereof be brought into
court and applied as follows: First, to the payment of the
costs of this suit; second, to the payment of the costs of
said sale; third, to the satisfaction of this
plaintiff's claim and judgment against said D. G. and
Edna P. Fritzlen.
'The
plaintiff further prays for such other and further relief
as to this court may seem meet, and the plaintiff will ever
pray.'
In due
season, defendant, the Boatmen's Bank, filed its petition
and bond for removal of the cause into this court. The
petition for removal, omitting formal parts, reads as
follows:
'Your
petitioner, the Boatmen's Bank of St. Louis, Missouri,
one of the defendants in the above-entitled cause,
respectfully shows that the matter and amount in dispute in
this suit exceeds, exclusive of interest and costs, the sum
and value of two thousand dollars; that the property
described in plaintiff's petition is worth about
$30,000, and much in excess of $20,000; and that the prior
mortgages held on said property by said Boatmen's Bank
were given and are held by said Boatmen's Bank to
secure an indebtedness due said bank
from said D. G. Fritzlen and Edna P. Fritzlen in the sum of
$32,920.15, with interest at eight per cent. per annum from
November 30, 1901; and that said plaintiff, as will appear
by his petition herein, is seeking to establish a first and
prior lien on and against said property in the sum of
$3,750.
'Your
petitioner further shows that this defendant is a
corporation created and existing, as averred in
plaintiff's petition, under the laws of the state of
Missouri, and has its principal office at the city of St.
Louis, in said state, and that therefore, before, at, and
ever since, and for a long time prior to, the bringing of
this suit, said Boatmen's Bank was and still is a
corporation duly created under the laws of and a citizen of
the state of Missouri. That said bank is engaged in the
banking business in the city of St. Louis, Missouri.
'Your
petitioner further avers and shows that said plaintiff, W.
H. Weldon, and the defendants D. G. and Edna P. Fritzlen,
were at the time of the bringing of this suit, and ever
since have been, and for more than two years prior to the
bringing of this suit have been, and still are, citizens of
the state of Kansas, and residents of the county of Clark,
in said state of Kansas.
'Your
petitioner further shows and avers that the controversy
herein as to whether the alleged mortgage of plaintiff, or
the prior mortgage of said Boatmen's Bank, on the
properties described in plaintiff's petition, is prior
and paramount, is a separable controversy wholly between
plaintiff and said Boatmen's Bank, and that said
controversy can be determined herein fully as between the
plaintiff and said Boatmen's Bank.
'Wherefore,
said Boatmen's Bank prays the court to make an order
removing this cause to said United States Circuit Court for
the District of Kansas, sitting in the Second Division
thereof.
'For
a still further ground and cause of removal herein, said
Boatmen's Bank shows and avers that the controversy
herein is between the plaintiff and said Boatmen's
Bank, and that by reason of prejudice against said
Boatmen's Bank, and the local influence of said
plaintiff, Weldon, and of the defendants D. G. and Edna P.
Fritzlen, in said Clark county, Kansas, said Boatmen's
Bank will not be able to obtain justice in this cause in
the district court of Clark county, Kansas, and that said
Boatmen's Bank does not have the right under the laws
of Kansas to remove said cause to some other county than
Clark county on account of said prejudice and local
influence; and defendant Boatmen's Bank shows and avers
that said plaintiff is a public official of said Clark
county, Kansas;
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