Zeagler v. Hunt

• Decision Date: 08 April 1941
• Docket Number: No. 341.,341.
• Citation: 38 F. Supp. 68
• Parties: ZEAGLER v. HUNT et al.
• Court: U.S. District Court — Western District of Louisiana

38 F. Supp. 68

ZEAGLER v. HUNT et al.

No. 341.

District Court, W. D. Louisiana, Alexandria Division.

April 8, 1941.

Sidney G. Myers, of Shreveport, La., for plaintiff.

Thompson & Thompson, of Monroe, La., and Blanchard, Goldstein, Walker & O'Quin, of Shreveport, La., for defendants.

PORTERIE, District Judge.

B. E. Zeagler, a resident of Louisiana, as plaintiff, instituted this suit before the Eighth Judicial District Court of Louisiana, alleging that the defendants, H. L. Hunt, a resident of Texas, and the Louisiana Central Oil & Gas Company, a corporation organized under the laws of the state of Delaware, have slandered the title of plaintiff to certain described lands by claiming rights to oil and gas in and under the lands. The petition complied with the Practice Act of Louisiana in that real and actual possession as owner for more than a year was claimed. The defendants jointly petitioned the Eighth Judicial District Court of Louisiana, alleging diversity of citizenship between all the parties and the requisite jurisdictional amount. The plaintiff has presented his motion to remand this suit to the Eighth Judicial District Court of Louisiana solely upon the ground that this cause is joint and not separable; and that the defendant, H. L. Hunt, has lost the right of removal by failing to make timely application therefor which, in the absence of a separable controversy, likewise subjects the other defendant, Louisiana Central Oil & Gas Company, to the same disability.

It is accepted by both sides that citation was had on Hunt on July 10, 1940, and that Hunt appeared in the joint motion of the defendants to remove the case from the state to the federal court not earlier than July 30, 1940—a lapse of twenty days. "The delay in no case shall exceed fifteen days in all." Article 180, Code of Practice of Louisiana. The petition to remove must be filed before the expiration of the time within which the defendant is required to answer or to plead to the petition in the state court, Judicial Code, § 29, 28 U.S.C.A. § 72; the time limit is mandatory and strictly applied, Delbanco v. Singletary, C.C., 40 F. 177, 178; Daugherty v. Western Union Tel. Co., C.C., 61 F. 138, 139; Ex parte Bopst, 4 Cir., 95 F.2d 828; Town of Fairfax, Oklahoma v. Ashbrook, D.C., 3 F.Supp. 345. Where a defendant loses the right of removal by failing to make timely application, the other defendants are, in the absence of a separable controversy, subject to the same disability. Abel v. Book, C.C., 120 F. 47; Fletcher v. Hamlet, 116 U.S. 408, 6 S.Ct. 426, 29 L. Ed. 679; De Stefano v. Gregg, D.C., 24 F. Supp. 187.

The single question then to decide is whether the petition of the plaintiff presents a separate controversy as between plaintiff and each of the two defendants. In other words, is there a distinct and separate cause of action stated by the plaintiff against each defendant? If the latter question be in the affirmative, the case remains in the federal court; if the controversy be not a separable one, each defendant being an indispensable party to the other, the case must be remanded to the state court.

The real source of help to decide the question has to come from the petition itself — to the exclusion of the language in the removal pleas and briefs, which tends to add to or enlarge its actual content.

The action originating in the state court is one of jactitation or slander of title, as it is peculiarly known to the Louisiana jurisprudence; the first article of the petition asserts on the part of the plaintiff the real and actual possession as owner under warranty deeds translative of title to three certain tracts of land, and alleges, further, the physical possession for more than a year before the institution of the action.

We should quote Articles 2, 5 and 6 in full:

"2. That the Louisiana Central Oil and Gas Company, which purports to be a corporation existing under the laws of the State of Delaware, and qualified to transact business within the State of Louisiana, and of which C. C. Sheppard of Clarks, Louisiana, is agent for the service of process, and H. L. Hunt, who is a resident of the City of Dallas, State of Texas, are slandering your petitioner's rights and title in full ownership of said estates by asserting claims to the minerals in and...