7 F. 435 | U.S. Circuit Court for the District of Eastern Missouri | 1881
This is an action of ejectment, in which the plaintiff has set out with great particularity his deraignment of title, through proceedings in partition, to which the Life Association of America became a party. The final decree in said partition suit allotted to the plaintiff the premises in dispute. Said decree was entered in June, 1877, and duly recorded.
In July, 1878, the Life Association of America destroyed the fence previously erected by plaintiff along the division line of the lots assigned to him by the decree in partition
The plaintiff in this action made the defendants in possession and said Eelfe the defendants to the suit. A moFon was subsequently made to dismiss as to said Eelfe, which was resisted by him. The court overruled the motion, on the ground that as the landlord might, under the Missouri statutes, make himself a party, and that, as the plaintiff had chosen to bring him in, it would be idle to dismiss as to him, and then have him take leave to appear instanter. Now, said landlord being defendant of record, appears specially and moves to dismiss the suit on the ground that the premises in dispute are in custodia legis of the state court through his tenants and himself, as a state officer, in whom there has been vested by operation of law the title, whatever it may have been, of said dissolved association. Themotion is supposed to rest on the. doctrine stated in Taylor v. Carryl, 20 How. 584; Freeman v. Howe, 24 How. 450; Buck v. Colbath, 3 Wall. 334; Thompson v. Scott, 4 Dill. 504; Conkling v. Butler, 4 Biss. 22; Wiswall v. Sampson, 14 How. 52; Beale v. Phipps, 14 How. 368, and other cases cited.
' The present suit was brought in this court after said Eelfe had become vested by decree of the state court with the title ef the Life Association, and after the attornment to him by the tenants in possession.
The technical question exists as to the mode of proceeding, viz.: Can a motion to dismiss raise the question desired to be presented ? If there appears on the face of the record that the court has no jurisdiction, a motion to dismiss would be proper. But other facts have to appear in this case to raise the jurisdictional question,—such as the proceedings in the state court, etc.,—which facts are stated at length in the motion and supplemented by the state record, etc. Hence, the ques
This court has had occasion, within the past year, to express its views upon supposed conflicts of jurisdiction between state and United States courts in like cases.
It is often difficult to ascertain the precise limits to be observed under the rules just stated, as it is to reconcile adjudications had. The cases above cited, and the two cases of Payne v. Hook in the United States supreme court, seem not to be in accord. Whether so or not, the case before the court is free from such embarrassment. The rights of all parties. had been settled by the partition decree. in the state court, despite which one had become a trespasser on the premises of the other. Because the trespasser passed into liquidation under a state law, and his tenants who were co-trespassers attorned to the state liquidator, the real and adjudicated owner, being a citizen of another state, could not be thus deprived of his constitutional right to be heard in this court. The point decided is, not that of interference with the undoubted possession, rightfully, of property by the officer of another court, but that of an attempt to oust this court of jurisdiction by the attornment of trespassers to such trespassing officer.
See Levi v. Columbia Life Ins. Co. 1 Fed. Rep. 206.