Standley v. Roberts

59 F. 836 | 8th Cir. | 1894

SANBORN, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

We are met at the threshold of this case by the objection that the order dismissing the interpleaders and the order dismissing the plaintiffs'' auxiliary petition for an injunction and vacating the temporary injunction issued, while the action between the plaintiffs and the defendant remained pending, were not final decisions, and hence were not appealable to this court. The act creating the circuit courts of appeals provides:

“That the circuit courts of ax>peals established by this act shall exorcise appellate jurisdiction to review by appeal or by writ oí error final decision in the district court and the existing circuit courts in all cases other than those provided for in ilio preceding section of this act unless otherwise provided for by law.” 26 Stat. c. 517, § 6; Supp. Rev. St. p. 903, § 6.

Section 7 of that act permits an appeal from an order granting or continuing an injunction, but, with this exception, no jurisdiction is given to this court to review any order, judgment, or decree made in the progress of a case, which does not embody a final decision. A case cannot; be brought to this court piecemeal. An order, judgment, or decree which leaves the rights of the parties to the suit affected by it undetermined — one which does not substantially and completely determine the rights of the parties affected by it in tluii. suit — is not reviewable here until a final decision is rendered, nor is an order retaining or dismissing parties defendant, who are charged to he jointly liable to the complainant in tlie suit, appealable. U. S. v. Girault, 11 How. 22, 32; Hohorst v. Packet Co., 148 U. S. 262, 263, 13 Sup. Ct. 590. But a final decision which completely determines the rights, in the suit in which it, is rendered, of some of the parties who are not; claimed to be jointly liable with those against whom the suit is retained, and a final decision which completely determines a collateral matter distinct from the general subject of litigation, and finally settles that controversy, is subject to review in this court by appeal or writ of error. In Withenbury v. U. S., 5 Wall. 819, several libels were filed for the condemnation, as prize of war, of large quantities of cotton and other property. These libels were consolidated, and various claims were interposed in the consolidated suit for portions of the property, and among them the claim of Withenbury & Doyle. An order was made dismissing this claim, with costs, while the suit remained pending and the cotton and its proceeds undisposed of. The supreme court held that this order was appealable, because it completely determined the whole matter in controversy between these claimants and the United States, and was final as to all the parties to that severaUe controversy. In Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. 638, an order fixing the amount of the compensation of receivers in a suit to foreclose a mortgage on a railroad while the main suit was still pending was held by that court to be appealable, because it was final in its nature, and was made in a matter distinct from the general subject of litigation, a matter by itself, which affected only the parties to the particular controversy, and those whom they represented. In Hill v. Railroad Co., 140 U. S. 52, 11 Sup. Ct. 690, where a suit was brought against several parties who were alleged to be interested more or less in certain contracts and transactions out of which the claim of the complainant arose, a decree dismissing the' bill as to certain of the defendants, and ordering it to be retained for the purpose of determining the liability of certain other defendants for an amount of money due under a certain contract specifically named, was held to be appealable because it was final as to the defendants dismissed, and the controversy left was a sever-able matter, which did not concern them. In Central Trust Co. v. Marietta & N. G. Ry. Co., 2 U. S. App. 1, 1 C. C. A. 116, 48 Fed. 850. the circuit court of appeals for the fifth circuit held that the decision of the court below on the petition of an intervener claiming certain locomotives and other railroad equipment then in the hands of a receiver that had been, appointed in proceedings to foreclose a mortgage on a railroad was appealable, because it finally decided the rights of the parties to the controversy presented by the petition, although the main suit for the foreclosure of the mortgage still remained pending and undetermined. In Grant v. Railroad Co., 2 U. S. App. 182, 1 C. C. A. 681, 50 Fed. 795, after a bill to foreclose a mortgage upon a railroad had been filed, and while the suit was pending, an auxiliary dependent bill against the coxnplainant, the railroad company, and others, charging that certain bonds secured by the mortgage were invalid, was filed in that suit; and, upon hearing, the court entered a decree dismissing the auxiliary bill. The circuit court of appeals of the fifth circuit held that decree appeal-able, because it finally disposed of the severable controversy presented by that bill, although the main suit was retained and referred to a master to ascertain the priority and validity of the liens on the mortgaged property, and to marshal the conflicting claims to the bonds. See, also, Forgay v. Conrad, 6 How. 201, 204; Bronson v. Railroad Co., 2 Black, 524, 529; Thomson v. Dear, 7 Wall. 342, 345; Trustees v. Greenough, 105 U. S. 527; Potter v. Beal, 5 U. S. App. 49, 2 C. C. A. 60, 50 Fed. 860.

The orders dismissing the interpleaders from this suit, vacating the preliminary injunction, and dismissing the auxiliary petition of the plaintiffs for an injunction, finally and completely disposed of all the rights of the interpleaders against either the plaintiffs or the defendant in this suit, and all the rights of the plaintiffs or the defendant against the interpleaders herein. They were therefore final decisions of the controversies between them in this suit, and properly appealable to this court. The controversy which remained related entirely to the liability of the defendant to the plaintiffs upon the written lease of October 1, 3887, and that was a severable' controversy between the plaintiffs and the defendant alone, the determination of which could not affect the interpleaders.

Can a lessee who has voluntarily taken an independent lease from each of two adverse claimants to the title of the sumo, real estate, by establishing these facts, and bringing the amount due on one of the leases into court, compel his lessors to interplead, and litigate their conflicting titles and the validity of their louses, before either of them can receive his rent, and thereby exonerate himself from lialíilií\v for the rent due on both Hie leases? This is the important question this case presents, on iis merits. Other questions are presented, involving the jurisdiction of the court below over the subject-matter and the parties, and involving the regularity of its proceedings; hut if that court had the power to take jurisdiction of the subject-matter in controversy, in a proper case, and if all the objections to the method it pursued in exercising that power are disregarded, the orders appealed from must still be affirmed, unless this question can he answered in the affirmative. If it cannot, the other questions become immaterial, and need not be considered. Adverse claimants of tlie same thing, debt, or duty from one who holds the thing or owes the debt or duty, and stands indifferent, and who has not colluded with, nor placed himself under any independent personal obligation to. any of them, may be compelled to interplead, and to obtain an adjudication of their conflicting claims, before any of ihem can recover 1he thing, or receive the proceeds of the debt or duty. Two rules regarding this subject are of universal application, where they ha,ve not. been expressly abrogated by statute: First. No case for an interpleader can he made, unless the adverse claimants seek to recover 1he same thing, debt, or duty. Second. No case for an interpleader can be made where the holder or debtor lias made an independent, personal agreement with some of the claimants regarding the subject-matter claimed, so that he is under a liability to them beyond that which arises from the title to the subject-matter. The statutes of Arkansas in force in the Indian Territory do not abrogate, but, emphasize, these rules. They provide a summary method by which, where it appears “in any action upon contract or for the recovery of personal property that some third party, without collusion with him (the defendant), has or makes a claim to the subject of the action, and that, he is ready to pay or dispose1 thereof as ihe court may direct,” the court may order that the third party shall appear and maintain or relinquish Ms claim against the defendant. Mansf. Dig. Ark. § 4947. Statutes of this character are in force in England and in many of the states, and are universally held to introduce no new cause of interpleader. St. 1 & 2 Wm. IV. c. 58: Belcher v. Smith, 9 Bing. 82; Pustet v. Flannelly, 60 How. Pr. 67. 69; Johnson v. Maxey, 43 Ala. 521, 541. In Belcher v. Smith, supra,— a case which arose under an English statute much, more1 comprehensive than the Arkansas statute before us, — the court declared that “our duty is to see that the party applying for the exercise of our discretion has not voluntarily put himself into the sil nation from which he calls on the court to ex-' trica t o him.”

The reason for, and the necessity of a strict enforcement of, the second rule is obvious. Parties claiming title to the thing in dispute ought not to he, and cannot properly he, compelled to litigate any rights but those in controversy between themselves. If the holder of the subject-matter in dispute has placed himself under an independent personal obligation to one or more of the claimants, by which his liability to deliver the thing' or pay the debt in question may be determined without a decision of the controversy between the claimants, it is plain that no litigation between the latter can ascertain the rights of the holder or debtor upon his personal obligation. Nor does the fact that the latter claims that his personal agreement was obtained by the fraud or misrepresentation of the obligees relieve the embarrassment, or except the case from this rule. The question presented by such a claim arises entirely between the par ties to the personal obligation of the holder or debtor. It is nothing to the other claimants, nor are they interested in, or proper parties to, the litigation over it. It would be a monstrous proposition that one who makes agreements with two persons to sell and deliver the same article to each of them could bring the article into court, and compel the two purchasers to litigate the question which had the better right to the thing, before either could recover it of him, of that a tenant of an owner could take a second lease of the same premises from one claiming title to them, and then compel the real owner and the pretended owner to litigate, not only the title to the premises, but- the validity of the leases the tenant himself had taken, before either lessor could recover his rent. If such a proposition could be sustained, any tenant might treat his landlord to as many lawsuits as he could obtain leases of his premises. To sustain the case for an inter-pleader presented by the record before us would not be less unreasonable. The lease of October 1, 1887, was signed and accepted by the defendant. On its face, it is a valid contract. The' defendant is estopped to deny its landlord’s title, and is liable to pay the rent reserved in it, whether the lessors were owners of the mine or not. It is true that the lease may be avoided for fraud, misrepresentation, or mistake, but the validity of this lease is a question entirely between the plaintiffs and their lessee. The interpleaders are not parties to it. The validity or invalidity of it is nothing to them, and the lessee cannot compel them to fight a battle with the plaintiffs that is exclusively its own. That the interpleader Davis was originally a party to the first lease is imma: terial, because he and the defendant both repudiated it before this action was commenced, and he has never claimed anything under it. The lease of February 25, 1888, from the interpleaders, is likewise a conclusive answer to this case. The defendant signed and accepted that lease. Prima facie, it entitles the inter-pleaders to the. rent reserved in it, whether they owned the mine or not. The lessee is in possession, and cannot, dispute its landlord’s title. And the court had no right to order these inter-pleaders, as a condition of holding and enforcing the lease, to plead and establish, not only the validity of that lease against théir tenant, but also their title to the mine as against the plaintiffs, and the invalidity of the plaintiffs’ lease. They were entitled to their rent regardless of the decision of the two latter questions, if their lease was valid as against the defendant. These independent personal obligations of the defendant to the adverse claimants to this mine make it impossible for it to present any case for an interpleader here. If it has fallen into a pit of its own digging, the courts cannot make the interpleaders its substitutes. Cook v. Earl of Rosslyn, 1 Giff. 167; Crawshay y. Thornton, 2 Mylne & C. 1, 17; Marvin v. Ellwood, 11 Paige, 365, 370; Dodd v. Bellows, 29 N. J. Eq. 127; Crane v. Bruntrager, 1 Cart. (Ind.) 165, 169; Canal Co v. Comegys, 2 Cart. (Ind.) 469, 472, 473; Snodgrass v. Butler, 54 Miss. 45, 49; 2 Story, Eq. Jur. § 812.

Moreover, the plaintiffs and the interpleaders do not claim to recover the same debt from the defendant. If A. makes one promissory note for $500, dated October 1, 1890, payable to the order of B. and G. 6 months from its date, and another, for the same amount, dated January 25, 1891, payable to the order of B. and D. 20 months from its date, and the respective payees sue the makers on their respective notes, it is absurd to say that B. and O. claim to recover of A. the same debt as do B. and D. The case here presented is yet stronger for the interpleaders. The plaintiffs claim to recover a debt which the defendant promised to pay to Davis, Standley, Phillips, and Nelson by the lease of October 1, 1887, for the term of 6 years, with a privilege of 20 years more. If the interpleaders claimed, by assignment or otherwise, to recover any part of the debt due under that lease, there would be a proper ease for an interpleader. But they do not. Davis and Neison both repudiated that lease, and expressly disclaimed any rights under or interest in it. The only claim of the interpleaders is that the defendant owes them rent due under the lease to Adams, Davis, James, Dodges, and McBride, dated January 25, 1888, for a term of 20 years from that date. Thus the plaintiffs and inter-pleaders respectively claim to recover of the defendant no part of the same debt, hut two independent debts arising under independent leases, of different dates and different terms, payable to different lessors.

Nor can the interpleaders be held as parties defendant to this action under the Arkansas statute in force in the Indian Territory, which provides that:

“Any person may be made a dei'endant wko has-or claims an interest in tlic controversy adverse to the plaintiff, or win is a necessary party to a complete determination of the questions involved in the action.” Mansf. Dig. Ark. § 4940.

The only controversy it is necessary to decide in order to determine the action between the plaintiffs and the defendant is that over the validity of the lease of October 1, 1887, between them. In that controversy the interpleaders neither have nor claim any interest. It can be, and in fact it must be, completely determined in an action between the plaintiffs and the defendant, bocamv they are the only parties interested in the question. Its decision in the action between them cannot in any wav determine or affect the rigid s of the interpleaders against the defendant, or of the defendant against the interpleaders, under the lease between them of January 25, 1888, or the rights of the plaintiffs and the inter-pleaders against each other to the title to the mine, and hence the latter are neither necessary nor proper parties to the plaintiffs’ action on their lease.

It is insisted that the interpleaders have waived their right to be dismissed from this action on the ground that no case for an inter-pleader has been established against them, because they appeared, answered, moved to change the venue of the action, to transfer it to the equity calendar, and after their motion to be dismissed on the pleadings was denied, and they had excepted, they filed an amended answer, in which they prayed for affirmative relief. But this position is clearly untenable. It may be conceded that the interpleaders, by their general appearance and answer, waived all objections to the method by which they were' brought into court, but the reason for their dismissal here lies deeper. It is that no case against them was ever pleaded or proved. On that ground they moved for a dismissal on the pleadings, while ihe first prayer of their answer was that they might be dismissed. Their motion ivas erroneously denied. They excepted, and then filed an amended answer, in which they asked the relief which the court had erroneously ordered them to seek in this action or to forever lose. That order was not appealable, and no litigant ought to be held to have waived any of his rights because he has quietly and respectfully obeyed such an order of the court after taking his exception. Harkness v. Hyde, 98 U. S. 476, 479; Pacific Co. v. Denton, 13 Sup. Ct. 44, 46; Railway Co. v. Pinkney, Id. 859. When the evidence had all been taken the inter-pleaders waived their claim for affirmative relief, which they had made under the protest of their exception, and moved the court to vacate the erroneous orders it had made, compelling them to inter-plead, and to dismiss them from the suit because no case had been either pleaded or proved against, them. This motion was well grounded in law and in fact. In our opinion the interpleaders had not waived their right to urge it, and it was properly granted.

The conclusion at which we have arrived also disposes of the appeal from the order dismissing the auxiliary petition for an injunction and vacating the preliminary writ. The only ground on which the injunction was sought in that petition was that in July, 1891, while this suit was pending between the plaintiffs, the defendant, and the interpleaders, the latter and B. F. Smallwood and John Frinzell brought an action against the plaintiffs in the circuit court of the Choctaw Nation to quiet their title to coal claim No. 6, and the royalties from it, and to recover $25,000 damages because the plaintiffs had illegally interfered with the mine, and prevented them from using it and collecting their royalties; that they had recovered the judgment they sought, and were enforcing it by levying an execution on certain cattle of some of the plaintiffs. There is no doubt that, in suits in which the court obtains jurisdiction by the seizure or control of the subject-matter of the suit, ihe court which first acquires jurisdiction over it may retain the property in its custody until final judgment, and in many cases until such judgment is satisfied, and that it may use its writ of injunction, or other proper process, to effect this result. Gates v. Bucki, 4 C. C. A. 116, 125, 53 Fed. 961, and authorities cited. It is equally well settled that the pendency of an action in one court will not bar or abate another action between the same parties, involving the same issues, in a court of co-ordinate jurisdiction, in which that jurisdiction is exorcised, not by seizure of the property, but by personal service of original process upon .the defendants. Stanton v. Embrey, 93 U. S. 548, 554, and cast's cited. The jurisdiction of the court in the Choctaw Nation was exercised solely by personal service of its process on the defendants in that suit. The parties to this action in the Choctaw court were all citizens of that nation, and there is no doubt that the Choctaw court had jurisdiction of the subject-mat. ter and the parties to that action. The act of May 2, 1890, (26 Stat. 81, c. 182,) entitled “An act to provide a temporary government for the territory of Oklahoma, to enlarge the jurisdiction of the United States court in the Indian Territory, and for other purposes,” provides, by its thirtieth section, “that the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the territory in which members of the nation by nativity or by adoption shall be the only parties;” and, this court lias held that the judgments of the courts of these nations, in cases within their jurisdiction, stand on the same footing with those of the courts of the territories of the Union and are entitled to the same faith, and credit. Mehlin v. Ice, 5 C. C. A. 403, 56 Fed. 12. See. also, In re Mayfield, 141 U. S. 107, 115, 11 Sup. Ct. 939.

The plaintiffs insist that, under the act entitled “An act to establish a United States court in the Indian Territory, and for oilier purposes.” (approved March 1, 1889,) which provides, in section 6. “(hat: all laws having the effect to prevent the Cherokee, ('hoctaw. Creek, Chickasaw, and Seminole Nations or either of them from lawfully entering into leases or contracts for mining coal for a period not exceeding ten years are hereby repealed, and said court shall have jurisdiction over all controversies arising out of said mining leases or contracts, and of all questions of mining rights or invasions thereof where the amount involved exceeds the sum of one hundred dollars,” (25 Stat. 783, c. 333, § 6,) the court below had co-ordinate jurisdiction with the Choctaw court to determine the questions presented in that court. It is unnecessary to decide that question. If we admit — and we do not decide — this proposition, and if we concede that the petition for an injunction might lawfully he retained, and the preliminary injunction sustained, as long as the court below continued erroneously to hold that, a case was presented in that court which enabled it to hear and determine the issues raised in the Choctaw court, yet it was the right and the duty of that court to dissolve the injunction and dismiss the petition as soon as it became advised that no case had been or could be presented in this suit in which it could decide those questions. This it has done, and the orders appealed from are affirmed, with costs.