Bentinck v. Guaranty Trust Co.

109 F. Supp. 827, 1952 U.S. Dist. LEXIS 2180

• Court: District Court, S.D. New York
• Decided: December 31, 1952
• Status: Published

Opinion

WEINFELD, District Judge.

The allegedly unauthorized payment of a portion of the principal of the trust was made in 1929; the allegedly unauthorized income payments from December 1927 to August 1939. Plaintiffs contend that David Crutchfield, an individual co-trustee, resigned on September 23, 1927; the defendants, that he resigned on October 20, 1936.

If, in fact, Crutchfield remained' in office until 1936 as co-trustee with the Guaranty Trust Company of New York, it appears his Estate (he having died before-the commencement of the present suit) is an indispensable party.¹ The issue of date of resignation is sharply contested and should not be determined upon affidavits, since diversity jurisdiction rests upon its-determination in view of the claim that Crutchfield was a citizen -and resident of' Texas, of which state one of the plaintiffs, also is a citizen.²

“In diversity cases, the question of indispensable parties is inherent in the issue of federal jurisdiction, the determination of which should never await a decision on the merits if the-complaint states a cause of action. Jurisdictional questions come first in the-orderly disposition of a case.” ³

“The requirement for complete-diversity cannot be brought about by a party failing to join, either with himself or on the opposite side, a party who is an indispensable party to the action, even though joining the absent party would result in a loss of jurisdiction by the federal court.”'⁴

The matter is set for hearing, or,, at the preference of the parties, may be referred to a Special Master for a forthwith determination of the issue. In the meantime, pending the determination of the question, the balance of the motion is held in abeyance.

Settle order on notice.

1 . Bitker v. Hotel Duluth Co., 8 Cir., 83 F.2d 721, 723; Albert Pick & Co. v. Cass-Putnam Hotel Co., D.C.E.D.Mich., 41 F. 2d 74, 75-76; Caylor v. Cooper, C.C.S.D. N.Y., 165 F. 757, 762.

2 - See 3 Moore’s Federal Practice, 2d Ed., 2145-2147.

3 . Calcote v. Texas Pac. Coal & Oil Co., 5 Cir.. 157 F.2d 216, 218, 167 A.L.R. 413, certiorari denied 329 U.S. 782, 67 S.Ct. 205, 91 L.Ed. 671. See also Keegan v. Humble Oil & Refining Co., 5 Cir., 155 F.2d 971; Young v. Garrett, 8 Cir., 149 F.2d 223.

4 . Metropolis Theatre Co. v. Barkhausen, 7 Cir., 170 F.2d 481 484, certiorari denied 336 U.S. 945, 69 S.Ct. 812, 93 L.Ed. 1101.