200 F2d 799 Lanham v. L Howell J D

200 F.2d 799

Henry F. LANHAM et al.


Robert L. HOWELL, Individually and as Executor of the Last

Will and Testament of J. D. Lanham, Deceased.

No. 14014.

United States Court of Appeals Fifth Circuit.

Jan. 14, 1953.

Arthar Bruce, Greenwood, Miss., Charles W. Anderson, Atlanta, Ga., for appellant.

Hardy Lott, H. Talbot Odom and Means Johnston, Greenwood, Miss., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

RIVES, Circuit Judge.

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This appeal is from a summary judgment dismissing the complaint on the ground that the matter is res judicata having been finally determined by the Supreme Court of Mississippi in Lanham v. Howell, 210 Miss. 383, 49 So.2d 701. The complaint claims federal jurisdiction on the ground of diversity of citizenship, alleging but not specifying fraud and seeking to invoke the equity powers of the federal court to annul the will of J. D. Lanham, deceased, hoping thereby to vest the entire estate in his heirs at law. Two of the persons who would be heirs at law of J. D. Lanham, deceased, if he had died intestate, are residents of Mississippi; and if they were made parties, the court would be deprived of jurisdiction. While logically the question of jurisdiction should be the first decided, the district court passed it over because it seemed so entirely clear that the matter was res judicata. We agree. The final judgment in the state court on the merits between the same parties is conclusive in this court. Jarrard v. Southeastern Shipbuilding Corporation, 5 Cir., 163 F.2d 960, 961; Hudson v. Lewis, 1 Cir., 188 F.2d 679, 680; Larter & Sons, Inc. v. Dinkler Hotels Company, Inc., 5 Cir., 199 F.2d 854. The judgment is therefore