Whitaker v. Coudon
| Decision Date | 13 October 1914 |
| Docket Number | 60. |
| Citation | 217 F. 139 |
| Parties | WHITAKER et al. v. COUDON et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John S Strahorn, of Annapolis, Md., and H. A. Brann, Jr., of New York City, for plaintiffs.
George R. E. Gilchrist and John A. Howard, both of Wheeling, W. Va for defendants.
This suit was instituted in the circuit court for Cecil county in this state. On petition of defendants it was removed to this court. The plaintiffs ask that it be remanded. No federal question is involved. The jurisdiction of this forum is invoked on the ground of diverse citizenship.
The plaintiffs, as the bill arranges them, are citizens of New York, South Carolina, Delaware, and West Virginia; the defendants of Maryland, West Virginia, and Washington. This district is not that of the residence of either all the plaintiffs or all the defendants. Upon the assumption that the alignment of the parties in the bill is in accordance with their substantial interests as seen by themselves, this court could not entertain the suit as against the objection of any one of them. The defendants contend, however, that the case made is one within the provisions of section 57 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1102 (U.S Comp. St. Supp. 1911, p. 152)), to which the statutory restrictions upon venue are not applicable. Plaintiffs dispute this contention. It will be unnecessary to pass upon it. There are Marylanders among the defendants. They have no right to remove on the ground of diverse citizenship a case against them from the courts of their state to one of the nation. There are citizens of West Virginia on each side of the record. If they should properly be where the bill puts them, the controversy to which they are parties is not one between citizens of different states. Defendants answer that, when the court arranges the parties according to their real rights and interests, it will appear that none of the objections to the jurisdiction stated are applicable.
What is the case made by the bill? Almost a quarter of a century ago one George P. Whitaker, a wealthy resident of Cecil county, died leaving a will which was there admitted to probate. He left the bulk of his estate to be equally divided among his five children and their descendants per stirpes. At his death he owned all the stock of the George P. Whitaker Company, a Maryland corporation, and one-fifth of that of the Whitaker Iron Company, which had received its charter from West Virginia. Four of his children held among them the other four-fifths. He named three executors, one of whom shortly resigned. The other two continued the administration of the estate. One of them, Nelson E. Whitaker by name, was a son of the testator; the other, the defendant Joseph Coudon. The former died some five years ago, leaving Coudon the sole surviving executor trustee. It so happened that the testator charged certain annuities for the support of his widow upon the estate. She is still living, and a complete division of the property has never been made.
The bill is very long, but the nature of the issues raised by it can be briefly stated. It charges that the two executor trustees made up their minds to filch from the descendants of a deceased child of the testator a large part of the latter's share of his estate. For that purpose they brought about the sale by the George P. Whitaker Company to the Whitaker Iron Company of the very valuable property of the former for a small fraction of its real worth. Those whom they were seeking to defraud were beneficially entitled to one-fifth of the stock of the George P. Whitaker Company and to only one twenty-fifth of that of the Whitaker Iron Company. Those in whose interests the executors trustees are alleged to have been acting were the substantial owners of twenty-four twenty-fifths of the Whitaker Iron Company and of only four-fifths of the George P. Whitaker Company. The plaintiffs in great detail tell how this scheme was carried through. Among the means employed was the procurement by fraud and concealment of various orders and decrees from the circuit court of Cecil county sitting as a court of equity. In the conception and execution of this fraudulent scheme it is charged that Nelson E. Whitaker was the master mind and the controlling will, but that the defendant Joseph Coudon knowingly and willingly contributed his active assistance to it and personally has largely profited by it. He is made a defendant as an individual as well as in his representative capacity. The bill prays that the conveyance of the property to the Whitaker Iron Company shall be set aside.
The state court was asked to order the removal upon the ground that there was a separable controversy to which the real plaintiffs were citizens of New York, South Carolina, and Delaware, while the defendants were the surviving ...
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...Bank v. Tichenor, D.C., 202 F. 1013; Wrightsville Hardware Co. v. Hardware & Woodenware Mfg. Co., C.C. S.D.N.Y., 180 F. 586; Whitaker v. Coudon, D.C.Md., 217 F. 139; Rand v. Hercules Powder Co., D.C.N.Y., 28 F.2d 131, In the case last cited the following language is instructive: "In the Alb......
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...in the courts of a state of which he was not a citizen that he could remove the suit to the circuit court." In Whitaker et al., v. Coudon et al., D.C., 217 F. 139, at page 141, the court said: "It is perfectly clear that a resident of a state in whose courts he is sued, if made a sole defen......
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