Thomas v. Anderson
223 F. 41
8th Cir.
1915
Check Treatment
HOOK, Circuit Judge.

[1] A question of jurisdiction of the trial court lies at the threshold of this case. Though not presented there, except by an assignment of error after final decree on the merits, it is plainly apparent on the record and cannot be ignored. Yocum v. Parker, 66 C. C. A. 80, 130 Fed. 770.

[2] Three heirs at law of a testatrix sued the executor of her will officially and individually in the District Court of the United States for the Western District of Missouri to recover a part of the residuary estate. The plaintiffs were citizens of Tennessee. The executor, who was also an heir, was a citizen of Missouri. The administrator of a fifth heir, likewise a citizen of Missouri, was made a defendant. The single, common point of controversy shown by the bill of complaint was the construction and validity of the clause of the will purporting to dispose of the residuary estate. If the plaintiffs were right in their contention, each of them-was entitled to one-thirteenth of that part of the estate, as though in respect thereof the decedent had died intestate, *43or, if not so, then that the executor took under the will as trustee for them, and the defendant administrator was entitled to a like share for the same reason. On the other hand, if the executor was right, he took the entire residuary estate under the will, to their exclusion. That the executor was also an heir, and had purchased the interests of certain other heirs, is unimportant. He was not asserting the right so derived and acquired to the detriment of the other parlies to the suit. There was no controversy on that score. The controversy was directed solely to his claim to the entire residuary estate under the will. In that he stood alone, and the other parties to the suit, contesting his position, stood together against him. There was no dispute between the plaintiffs and the defendant administrator. He was equally interested with them in defeating the executor. Therefore, in aligning the parlies for the purpose of jurisdiction, he should be classed as a plaintiff. The result is we have a suit by three citizens of Tennessee and a citizen of Missouri against another citizen of Missouri. That this conclusion does not rest on fanciful premises is confirmed by what occurred after the bill of complaint was filed. The defendant administrator, in answering, admitted the plaintiff’s averments and joined them in their prayer for relief. The decree of the court was for him equally with each of them, and with them he now asks an affirmance of the decree. He was a real and proper party plaintiff in the suit, and, being a citizen of the same state as the real defendant, the trial court was without jurisdiction. Watson v. Bonfils, 53 C. C. A. 535, 116 Fed. 157.

[3] The three plaintiffs who brought the suit could have maintained it without the administrator. The interest of the latter, though like, was severable from theirs, and his presence was pot essential to the relief they sought in their own behalf. He was a proper party, but not an indispensable one, within the long-settled meaning of those terms. Waterman v. Canal-Louisiana Bank Co., 215 U. S. 33, 30 Sup. Ct. 10, 54 L. Ed. 80; Horn v. Lockhart, 17 Wall. 570, 21 L. Ed. 657. Where a person whose presence in a suit is proper, but not indispensable, cannot be made a party without ousting the jurisdiction of the trial court, it may in its discretion proceed in his absence, and the decree shall he without prejudice to his rights. The thirty-ninth equity rule (226 U. S. 659, 33 Sup. Ct. xxix), to that effect is declaratory of the settled practice at the time of its adoption.

[4, 5] When the trouble is noticed after the suit has been brought, the power of the court to retain jurisdiction by allowing amendments to pleadings and dismissals of those whose presence would oust it has been upheld in the interest of justice and the speedy determination of litigation. Grove v. Grove (C. C.) 93 Fed. 865. But the cure, if there can be one/must be had in-the court of original cognizance, not in the appellate court. The former is the forum of first action, where the parties come and go, where the pleadings are presented and the issues formed and tried. The function of an appellate court is supervisory and corrective. By section 274c of the Judicial Code (Act March 3, 1915) it has been enlarged in case of an existing diversity of citizenship defectively alleged; but the power to allow amendment, so conferred, does not reach the case at bar. Various conditions in which cases have *44been sent back to trial courts with authority to make corrections to show jurisdiction appear in the following: Lewis v. Darling, 16 How. 1, 13, 14 L. Ed. 819; Gaylords v. Kelshaw, 1 Wall. 81, 83, 17 L. Ed. 612; Robertson v. Cease, 97 U. S. 646, 650, 24 L. Ed. 1057; Continental Ins. Co. v. Rhoads, 119 U. S. 237, 7 Sup. Ct. 193, 30 L. Ed. 380; Denny v. Pironi, 141 U. S. 121, 11 Sup. Ct. 966, 35 L. Ed. 657; Roberts v. Lewis, 144 U. S. 653, 658, 12 Sup. Ct. 781, 36 L. Ed. 579; Stuart v. Easton, 156 U. S. 47, 15 Sup. Ct. 268, 39 L. Ed. 341. It was specifically held in Denny v. Pironi, supra, that a case cannot be amended on appeal to show jurisdiction.

The decree is reversed, and the cause is remanded, with direction to dismiss the suit without prejudice for want of jurisdiction, unless the obstacle to the jurisdiction is removed with leave of the trial court.