n'Auxy 11. PORTER et ale
(Circuit Ooun, D. OonnecUcut. January 18,1890.)
FBDBRAL COURTS-JURISDIOTION-NoN-RESIDENT PARTIES-PARTNERSHIP.
Rev. St. U. S. § 787,ghfing the circuit court jurisdiction of suits between parties properly before it,when.there are several defendants, some of whom are not inhabitantsof, nol' found within, the district, but providing that the judgment shall not prejudice the parties not served and not voluntarily appearing, does riot l'equlre a court to entertain jurisdiction of a bill for an account against three partners, two of who)D are non.residents,. were not served, and do not appeal'. They are parties of such importance that complete justice cannot be done without their presence. A complaint by an administratrix, shOWing hel' appointment in anothel' state, but averring none in the state in which the federal court in which suit is brought is sitting, is demurrable. " '
SAME-ACTION BY ADMINISTRATOR.
Action for account·. Alfred T. Ackert, for plaintiff. H. '0. & L. F. Robinson, for defendants.
SHIPMAN, J. This is an action of account by the plaintiff, as admin. istratrix of Robert Soutter, who was in his life-time a member of the firm of Soutter & Co., against his three surviving copartners. Porter, Fitzhugh, and W. K. Soutter, for an account of the copartnership transactions. ,The complaint lilleges that the complainant is a citizen of the state ofNew York, and that the defendant Porter iSR citizen of the state of Connecticut. The: citizenship of the other two defendants is riot averred, but it is admitted that they are citizens and residents of the state of New York. They were not served, and have not appeared. Porter was served. and haS appeared. The complaint alleges that the complainant was, by an order of the surrogate of the county of New York, duly appointed, and now is, administratrix of the estate of Robert Soutthe will annexed, and that neither of the defendants has ever a'ccolulted to the estate in respect of the said copartnership. The de-. Porter has qemurred to the complaint because it does !lot show that t,l;ie,requisite diverse. citizenship existed, and because it does show upoll .face that the l,Jornplainant is a foreign administratrix, and has not receiYellletters of administration from the proper courts of the state of Oonnecticut. . .. .. . . As it is admitted' that Fitzhugh and William K. Soutter are. and were at the commencement of the action, citizens of the state of New York, the suit is one in which citizens of that state are the plaintiff and two of the defendants, and a citizen of Connecticut is the third defendant. The action being one of accouni against three surviving partners, the New York defendants are necessary, and not merely nominal, parties, and are adverse in interest to the plaintiff. If there was nothing more in the case, it would be plain that the court was without jurisdiction. PfYfJer V. Fordyce, 119 U. S. 469, 7 Sup. Ct. Rep. 287; Walden v. Skinner, 101 U. S. 577; Barney v. Baltimore City, 6 Wall. 285. But it is claimed that the act of 1839 (now section 737 of the Revised Statutes)
DUCltESSE DPAUXY ". PORTER.
enables the court to entertain jurisdiction. This act authorizes the circuit court to entertain jurisdiction, and proceed to the trial and adjudication of suits between parties who are properly before it, when there are defendants, and one or more of them are neither inhabitants nor found within the district in which the suit is brought, and do not voluntarilyappear; but it is provided that the judgment shall not conclude voluntarily apor prejudice the parties not served with process. pearing. It is well settled that this section does not require a court to where entertain or continue jurisdiction of a suit, especially ill non-resident defendants are parties of such importance that complete justice cannot be done between the parties to the suit without' their presence, and they have not voluntarily appeared. The action of account is in form an action at law, but, under the statutes of Connecticut, after the judgment that the parties do account has been rendered, is really an equitable suit. It is therefore not important whether this action is an action at law, or is, as it has been treated by the parties, a bill inequity. It has, furthermore, been held that the section "does not affect any case where persons having an interest are not joined because their citizenship is such that their joinder would defeat the jurisdiction. II Shields v. Barraw, 17 How. 130; Barney v. Baltimore City, 6 Wall. 285; Jone.q v. Andrews, 10 Wall. 327; Lovejoy v. Washburne, 1 Biss. 416. This case comes within the principle which the supreme court has been careful to announce in the cited cases, because the accounting must necessarily involve the pecuniary partnership relations of the ahsent partners with the late firm of Soutter & Co., and with the complainant. The second ground of demurrer is also well taken. It appears from the complaint that the plaintiff was appointed administratrix by the gate of the county of New York, and it is not averred that an appointment has been made by a court of probate in Connecticut. The decisions are to the effect that a foreign executor cannot sUe in another try or another state by virtue of his foreign appointment, but must obtain new powers, and give new security, in the state where he brings suit,unlessthe statute of tbe latter state has otherwise provided. comb v. Phelps, 16 Conn. 127; Marcyv. Marcy, 32 Conn. 308; Noonan v. BmdleY,H Wall. 395. When the fact appears upon the face of the com'; plaint that the plaintiff's authority was derived from the foreign appointment alone, the defect can be pointed out by demurrer. 'L'be demurrer is sustained.
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C.&P.R. Co"et,aZ. '
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S. D. Florida.
,;,In E q u i t y . , ' S. iY' &:Lttciu8 PinlfJy, for complainant. Joseph. B. Wall, for defendants.
L09KE,<J. 'This is a bill ,asking an injunction to restrain defendant
companyArom bpilding road and'laying its track across a piece of latld oQcupied by plaintiff, andin which he claims he has an equitato justify this action. The piece of land ble :w.llich the right,::lf. way is in controversy is a pOl'tion of the Ft. nroolfe,:reservation, adjoining the city of Tampa. It was originally held by the United States for nlilitary purposes, but it is alleged by plaintiff, /tAd oonce.dedbydefendant, that it had been transferred from the war to the illterior department, and therefore became a part of the ordinary pubUc ll;tllds of the United States, subject to entry under the general land laws, '.elle bill alleges that plaintiff entered upon the land with the inof making a home thereon, and securing title to the tent be has made efforts to obtain title; that his application is now"peJlPing, and being investigated by the land department of the Uni,tedStatesl that he has possession of and is residing upon it; and tl)at by"rElason of these facts he has equitable title to and claims the same u,nderA-nd by virtue of the laws of the United States.·· The affidavits filed by ,de!en<i/tntshow that complainant had··filed a declaratory statement f'or the ,pprpo-se of pre.empting said land; that under an order of the commissioner of the general land-office a hearing has been recently had, and testimony taken, but that no decision has been rendered thereon; that there are many contests over the rights to enter and purchase said reserved lands, and that no decision on the merits of the several contestants has been made by the executive department of the government. A letter from the local land-office has been presented, showing that the plaintiff is recognized as one of the claimants to rights in the land, and that the case is being investigated. Defendant's affidavits also show that, under It charter and laws of the Rtate, it has surveyed, and is constructing, a railroad to the waters of Tampa bay, and that crossing the land in question is the only practicable way of entering the city of Tampa,