65 F. 529 | 5th Cir. | 1894
The bill was filed February 14, 1894. The appellant company, defendant in the court below, appeared and interposed demurrers to the bill, raising the question of jurisdiction of the court, after which the writ of injunction complained of was allowed.
The first assignment of error is in gran ting an injunction against this defendant in the interlocutory order or decree of May 4, 1894, when it appears on the face of the hill of complaint that this court had no jurisdiction of this defendant, because it appears that the defendant is a citizen of the same state as the complainant. The appeal is prayed for by the Anglo-Florida Phosphate Company alone, and there is an order of severance in the record. The allegation in the bill is that John C. McKibben, who resides in the county of Marion, state of Florida, brings this, Ms supplemental bill, for the enforcement of a decree against George C. Stevens, of the city of
The appellant company contends that upon the face of the bill the controversy is between citizens of the,same state, and that the bill is not in any proper or legal sense a supplemental or ancillary bill, and that the jurisdiction of the court cannot be maintained on that ground. In Fost. Fed. Prac. p. 141, § 64, it is said:
' “Original bills are those which relate to some matters not before litigated In •the court of equity by the same parties standing in the same interests. Bills*531 not original are those which relate to some matter already litigated In the court of equity by the same parties, or their representatives, and which are either an addition to or a continuance of an original bill, or both,” — citing authorities.
We are furnished with a pretty full citation of authorities in decided cases, among which is the case of Dunn v. Clarke, 8 Pet. 2, which is a leading case, and has been cited and followed many times in adjudicated cases. A brief examination of the bill is necessary in order to determine whether, in the light of the adjudications upon the subject, it falls within the rule as to supplemental or ancillary bills. The first bill was filed September 21,1892, and its scope and purpose were to establish a partnership, and obtain an account and share of alleged profits of the copartnership. And in this litigation complainant succeeded in obtaining the decree of February 13, 1894, which, as stated in the bill in this case, is “that your orator, John C. MeKibben, was a partner with said George O. Stevens, and as such partner entitled to one-half of all the lands, assets, and profits arising from the copartnership dealings between the said copartners.” There is nothing in this decree adjudicating title to any particular tract of land, and it could not affect title to lands which had theretofore been conveyed to third parties at a time prior to the filing of the bill, and who were not parties to the suit nor had their day in court. In the fifteenth paragraph of the bill it is charged that on or about the 8th day of October, 1891, — the date of the said deed from the said defendants Stevens and Graham to the said defendants Ephraim Banning and S. M. Meek, as trustees for the Anglo-Florida Phosphate Company, — the title to the said 1,300 acres of land described in said deed was held by the said defendants Stevens and Graham as part of the assets of the said copartnership between complainant and defendant Stevens, and in trust for your orator as to his one-half interesttherein,ortheproceedsof any sale thereof by the said defendants Ephraim Banning and S. M. Meek, as trustees, as aforesaid; and that the said defendant corporation the Anglo-Phosphate Company took the title to said lands with full notice of said interest of your orator in the said lands, and subject to the trust for his benefit therein. But how can this decree of February 13, 1894, affect the sale and transfer of the 1,300 acres of land made by Stevens and Graham to Banning and Meek, as trustees for the Anglo-Florida Phosphate Company, which transaction, as alleged, was made prior to the filing of the bill, and to which bill the appellant company was not a party? And again, if it was the purpose of that bill to call in question the title to the lands purchased by the appellant company, why was it not made a party defendant in that suit? If it had been made a party defendant, the suit would have been between citizens of the same state, and the jurisdiction could not have been maintained; and, that being so, it follows that the jurisdiction of the court cannot be maintained on this bill on any theory or ground that it is supplementary or ancillary to the first bill. It seems clear that this bill cannot fall within any rule applicable to supplemental bills as to appellant company. New parties are brought in as defendants, and new matter charged as a basis and ground of relief which was
Other questions were discussed at the hearing. The equity of the bill was attacked, but, being of opinion that the court is without jurisdiction, we do not deem it necessary to go further. The injunction must fall with the bill, and the case is remanded, with direction to dissolve the writ, and dismiss the bill as to appellant company.