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estate. By leave of the court, the Northern Counties Investment Trust, Limited, also a British subject, intervened and filed its crossbill against the said defendants for the foreclosure of a junior mortgage, also making Walter Powell, likewise a subject of Great Britain, a defendant to the cross-bill. The original defendants, Matthew Gage and Jane Gage, have demurred to, and also interposed a motion to strike out, the cross-bill, and the present hearing is on said demurrer and motion. The other facts will appear further on in the opinion. The grounds of objection to the cross-bill
, raised by demurrer and also by a motion to strike out, seem to be three in number and as follows: First. That, aligning the Northern Counties Investment Trust, Limited, and Walter Powell as codefendants with Matthew Gage and wife, which alignment all parties agree is the proper one, federal jurisdiction is thereby ousted, because the resulting situation presents Newton, an alien, on one side, and the Northern Counties Investment Trust, Limited, and Powell, both aliens, on the other side of the case. Second. That the foreclosure of cross-complainant's junior mortgage is in no way a matter of defense to the foreclosure of complainant's first mortgage, but a distinct and independent cause of action, and, therefore, not the subject of a cross-bill. Third. That a cross-bill could not be filed by the Northern Counties Investment Trust, Limited, nor against Walter Powell, even if the original complainant and each of the two parties just named were citizens of different states, for the reason that both of said parties are strangers to the original bill. These objections will be noticed in the order of their statement.
First. That the bringing in of a new party, by cross-bill or otherwise, when the presence of such party as an original defendant would have defeated federal jurisdiction, violates both the constitutional and statutory requirement as to diverse citizenship, is expressly held in Shields v. Barrow, 58 U. S. 130, 15 L. Ed. 158, wherein the court says:
“It is apparent that, if it were in the power of a Circuit Court of the United States to make and enforce orders like this, both the article of the Constitution respecting the judicial power, and the act of Congress conferring jurisdiction on the Circuit Courts, would be practically disregarded in a most important particular. For in all suits in equity it would only be necessary that a citizen of one state should be found on one side, and a citizen of another state on the other, to enable the court to force into the cause all other persons, either citizens or aliens. No such power exists; and it is only necessary to consider the nature of a cross-bill to see that it cannot be made an instrument for any such end.
* When the defendants, Mrs. Shields and Bisland, had complied with the order of the court, and filed their cross-bill, as it was called, against the other indorsers and Thomas R. Shields, and they had come in, as they did, what was their relation to the cause? They surely were not plaintiffs in it. If they were defendants the court had not jurisdiction, for they, as well as the complainant, were citizens of Louisiana. In truth, they were not parties to the original bill. They were merely defendants to the cross-bill. They had no right to answer the original bill, or make defense against it, and of course no decree could be made against them upon that bill. We do not find it necessary to pursue further an examination, in detail, of the complicated maze of pleas, demurrers, answers, amendments, and interlocutory orders, which followed the filing of this socalled cross-bill. It is enough to say that the defendants to it were never lawfully before the court; that the court never obtained jurisdiction over those
of the parties who were citizens of the state of Louisiana, and amongst them was Thomas R. Shields, who, though made a party to the original bill by amendment, as a citizen of Mississippi, pleaded that he was a citizen of Louisiana, and was thereupon stricken out of the original bill, and was only a defendant to the cross-bill."
From appellant's brief in that case, on the point decided by the court in the foregoing extract from its opinion, I quote as follows:
"On what ground is the jurisdiction of the Circuit Court of the United States to determine a controversy between citizens of Louisiana to be maintained? The only authority cited by complainant's counsel is Story Eq. Pl. $ 392, and authorities there cited. This authority is not at all in point. It only refers to a question of pleading in equity, relating to cross-bills, but does not touch the question of jurisdiction. * * The device used in this case is perfectly transparent, and, if successful, converts the federal courts into courts of unlimited jurisdiction, regardless of the citizenship of the parties. It requires no argument to show that the original bill could not possibly be sustained for want of proper parties. A bill to set aside an agreement for canceling the sale of property could not be entertained without the presence of the two parties to the sale and agreement to cancel. But the court was without jurisdiction between these two parties, who were both citizens of Louisiana, and the bill should have been dismissed on its face. stead of this, the defendants, citizens of Mississippi, having a common interest with these citizens of Louisiana, were forced, in spite of their protest, and under duress of the process of the court, to file a bill against their codefendants, not for their own benefit, but in order to help the complainant to get a judgment against themselves and against the codefendants.”
The authority of Shields v. Barrow, although the opinion of the court has been subjected to criticism in another particular, has never been challenged, as far as I know, on the point now under consideration. The following extracts from defendants' brief are in line with the doctrine declared in Shields v. Barrow, and show its direct application to the case at bar, namely:
"This cross-bill relates solely to another mortgage upon a part of the same property and seeks to foreclose that mortgage. If it had brought such a suit in this court for the same purpose originally, it is obvious that the court would have no jurisdiction. Any defense which the original defendants should make to this cross-bill must necessarily be foreign to the original bill; for in any controversy existing between the Northern Counties Investment Trust, Limited, and the original defendants, is a controversy which does not concern the plaintiffs, and is not necessary to a complete decree on the original bill. If the Northern Counties Investment Trust, Limited, had been brought into this suit originally, in what capacity must it have appeared ? It could not have been a coplaintiff with Newton, and must necessarily have been made a party defendant. If it had been a party defendant, the jurisdiction of the court would be ousted, and the jurisdiction of a court cannot be called into action by such a simple contrivance as a plaintiff's leaving out of his bill one who insists that it ought to have been a party defendant, then permitting that party to come in as an intervener, and then to tile a cross-complaint whereby others who ought to have been parties to the original bill are brought into court, and the jurisdiction saved by this roundabout device. The maxim by which courts of equity are controlled no one denies. Their anxiety to make an end of litigation in one suit where that is possible, its reluctance to litigation by piecemeal, are all well understood principles and highly commendable. But those same principles are recognized by the state courts as fully as they are by the federal courts in equity. And this court is not inclined to draw to itself jurisdiction in cases where it does not rightfully attach by reason of, or through the application of, these principles, when there was nothing to hinder the invocation of those same principles in the state
courts and where the objection to the jurisdiction on the ground of the citizenship of the parties would not have existed."
I have examined carefully and in detail the authorities cited in complainant's brief to his contention that interventions, bringing in new parties, do not oust federal jurisdiction, no matter what be the citizenship of the parties thus introduced, and find that each one of them is an exceptional case, easily harmonized with Shields v. Barrow, supra.
In Sioux City Terminal R. & W. Co. v. Trust Co. of N. A., 82 Fed. 124–126, 27 C. C. A. 73, the mortgaged property was in the custody of the court, as shown by the following extract from the opinion, at page 128 of 82 Fed. (27 C. C. A. 73):
"When the banks had been dismissed, the Circuit Court had jurisdiction of the subject-matter and of the parties to the suit. It also had the possession of the mortgaged property, which was then in the hands of the receiver.”
This statement of the court as to the possession of the mortgaged property, which is not set forth in complainant's quotation of part of the same paragraph, distinguishes said case widely from Shields v. Barrow, and brings it within the exception above noted, that possession by the court of property in litigation carries with it jurisdiction to determine the rights of every person who claims an interest therein, and to that end brings before it all parties necessary to a full determination of the issues without regard to their citizenship. This jurisdiction does not depend upon diverse citizenship, but grows out of the judicial possession of the property and the resulting duty which such possession unavoidably imposes upon the court to afford suitable relief to persons, who, on account of its action in acquiring the property would otherwise be remediless. The grounds of this rule and its supporting authorities will be further noticed later on.
The other cases cited by complainant in this connection are either analogous in principle to Sioux City Terminal R. & W. Co. v. Trust Co. of N. A., supra, or are cases where the interests represented by the new parties were identical with those of one or more of the original parties, and were therefore already involved in the suit.
Thus, in Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714, 29 L. Ed. 888, an action for the recovery of real estate, the tenant was the original party and the landlord was the new party, and upon this state of facts the court said:
“It is equally an error to assume that plaintiffs had not a substantial and real controversy with the defendant Oaks, and that their controversy was solely with the Zeidlers. The object and purpose of the action was to recover possession of the real estate in the visible and actual occupation of Oaks, and not otherwise in the possession of his landlord, than by force of his tenancy. The Zeidlers were not citizens of Missouri, nor residents of the district, and could not have been sued by the plaintiffs. The latter were not bound to look beyond the person who, by his occupation of the disputed premises, was holding adversely to their claim; and if the Zeidlers were permitted to defend, it was for their own interest, and not because they were either necessary or indispensable parties to the proceeding in which the plaintiffs were the actors. The controversy, so far as the Zeidlers were interested in it, was of their own seeking, and, as their rights could not be concluded by a judgment against the tenant, they were not in a position to insist that the plaintiffs should forego their legal right to proceed against the most convenient defend
ant. The landlord could defend the possession of the tenant, as it was his right and duty to do on notice of the action, but he could do so as well in the name of the tenant as in his own. At any rate, the plaintiffs had a right to eject the defendant, who actually and unlawfully withheld from them possession of their lands; and it is not correct to say that the controversy in law is with the landlord in virtue of whose claim of title the wrongful possession is maintained. Much less can the plaintiff's right to prosecute his action in the courts of the United States, once vested, be defeated by imposing upon him an adversary against whom he cannot maintain the jurisdiction of these tribunals.
It was quite proper, therefore, for the Circuit Court to admit the landlord as a party, for the purpose of defending his tenant's possession, and, through that, his own title; and to this end he might not only be permitted to appear as a party to the record and codefendant, but to control the defense as dominus litis, raising and conducting such issues as his own rights and interests might dictate. And this need not arrest or interfere with the jurisdiction of the court, already established by the plaintiffs against the tenant in possession. For such proceedings should be treated as incidental to the jurisdiction thus acquired, and, auxiliary to it, as in like cases, in equity, one interested in the subject-matter, though a stranger to the litigation, may be allowed to intervene pro interesse suo. Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145."
Stewart v. Dunham, 115 U. S. 61, 5 Sup. Ct. 1163, 29 L. Ed. 329, was a creditors' bill, "filed on behalf of the complainants and all other creditors who might come in and share the costs of the litigation,” and the court said:
"The right of the court to proceed to decree between the appellants and the new parties did not depend upon the difference of citizenship, because, the bill having been filed by the original complainants on behalf of themselves and all other creditors choosing to come in and share the expenses of the litigation, the court, in exercising jurisdiction between the parties, could incidentally decree in favor of all other creditors coming in under the bill. Such a proceeding would be ancillary to the jurisdiction acquired between the original parties, and it would be merely a matter of form whether the new parties should come in as co-complainants, or before a master, under a decree ordering a reference to prove the claims of all persons entitled to the benefit of the decree. If the latter course had been adopted, no question of jurisdiction could have arisen. The adoption of the alternative is, in substance, the same thing."
Another familiar instance of the introduction of new parties without ousting the jurisdiction of the court is that of the death of an original party and the substitution of his personal representative. In such a case federal jurisdiction remains undisturbed, no matter what be the citizenship of the new party, for the reason that the interest represented by said party was already before the court in the person of the deceased.
Hardenburgh v. Ray, 151 U. S. 112, 14 Sup. Ct. 305, 38 L. Ed. 93, like Phelps v. Oaks, supra, was ejectment, and the court held, quoting from the syllabus, that, “when the jurisdiction of a Circuit Court has fully attached against the tenant in possession in an action of ejectment, the substitution of the landlord as defendant will in no way affect that jurisdiction, although he may be a citizen of the same state with the plaintiff.”
Freeman v. Howe, 65 U. S. 450-460, 16 L. Ed. 749, so far as pertinent here, is only an earlier assertion of the doctrine of Sioux City Terminal R. & W. Co. v. Trust Co. of N. A., supra, and the same is
true of Krippendorf v. Hyde, 110 U. S. 276, 4 Sup. Ct. 27, 28 L. Ed. 145.
In this last case, the court gave a clear exposition of the rule that a court in possession of property has jurisdiction to determine all claims thereto, regardless of the citizenship of the parties, as follows:
"It has been sometimes said that this statement was obiter dictum, and not to be treated as the law of the case; but it was, in point of fact, a substantial part of the argument in support of the judgment, and, on consideration, we feel bound to confirm it in substance as logically necessary to it. For if we affirm, as that decision does, the exclusive right of the Circuit Court in such a case to maintain the custody of property seized and held under its process by its officers, and thus to take from owners, wrongfully deprived of possession, the ordinary means of redress by suits for restitution in state courts, where any one may sue, without regard to citizenship, it is but common justice to furnish them with an equal and adequate remedy in the court itself which maintains control of the property, and, as this may not be done by original suits, on account of the nature of the jurisdiction as limited by differences of citizenship, it can only be accomplished by the exercise of the inherent and equitable powers of the court in auxiliary and dependent proceedings incidental to the cause in which the property is held, so as to give to the claimant, from whose possession it has been taken, the opportunity to assert and enforce his right. And this jurisdiction is well defined by Mr. Justice Nelson, in the statement quoted, as arising out of the inherent power of every court of justice to control its own process so as to prevent and redress wrong.
"No one, even in equity, is entitled to be made or to become a party to the suit unless he has an interest in its object (Calvert on Parties, 13); yet it is the common practice of the court to permit strangers to the litigation, claiming an interest in its subject-matter, to intervene on their own behalf to assert their titles.
““When any person,' says Mr. Daniel, Chancery Practice, c. 26, § 7, p. 1057, claims to be entitled to an estate or other property sequestered, whether by mortgage or judgment, lease, or otherwise, or has a title paramount to the sequestration, he should apply to the court to direct an inquiry whether the applicant has any and what interest in the property sequestered. This inquiry is called an examination pro interesse suo; and an order for such an examination may be obtained by a party interested, as well where the property consists of goods and chattels or personalty as where it is real estate. Thus, in Martin v. Willis, 1 Fowl. Ex. Pr. 160, a person claiming title to goods seized under a sequestration, obtained an order for an examination pro interesse suo, and in the meantime that the goods might be restored to him on his giving security.'
"The same practice prevails in cases where property is put into the hands of a receiver. Daniel, Ch. Pr. c. 39, § 4, p. 1744. The grounds of this procedure are the duty of the court to prevent its process from being abused to the injury of third persons, and to protect its officers and its own custody of property in their possession, so as to defend and preserve its possession except by leave of the court.
“So the equitable powers of courts of law over their own process to prevent abuse, oppression, and injustice are inherent and equally extensive and efficient, as is also their power to protect their own jurisdiction and officers in the possession of property that is in the custody of the law (Buck v. Colbath, 3 Wall. 334, 18 L. Ed. 257; Hagan v. Lucas, 10 Pet. 400, 9 L. Ed. 470); and when in the exercise of that power it becomes necessary to forbid to strangers the restoration of property in that situation, as happens when otherwise conflicts of jurisdiction must arise between courts of the United States and of the several states, the very circumstance appears which gives the party a title to an equitable remedy at law, and the question of citizenship, which might become material as an element of jurisdiction in a court of the United States when the proceeding is pending in it, is obviated by treating the intervention of the stranger to the action in his own interest, as what Mr.