Latham v. Barney

U.S. Circuit Court for the District of Minnesota

Latham v. Barney

14 F. Cas. 1169, 10 Chi. Leg. News 11, 23 Int. Rev. Rec. 320, 1877 U.S. App. LEXIS 1854

CourtU.S. Circuit Court for the District of Minnesota

DecidedAugust 24, 1877

StatusPublished

This text of 14 F. Cas. 1169 (Latham v. Barney) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Latham v. Barney, 14 F. Cas. 1169, 10 Chi. Leg. News 11, 23 Int. Rev. Rec. 320, 1877 U.S. App. LEXIS 1854 (circtdmn 1877).

Pincite

Opinion

NELSON, District Judge.

The removal is claimed under an act of congress approved March 3, 1875. If the defendant, the Wi-nona & St. Peter Land Company is a necessary party to the controversy, the motion to remand must prevail, for there would not then be a controversy wholly between citizens of different states, and the removal is not asked by all the defendants, so that a solution of the question depends upon whether this defendant is such necessary party.

The plaintiffs charge in their complaint, that the defendants who have petitioned for this removal have defrauded them, and also withhold wrongfully, their money, and have conveyed or authorized to be conveyed a large amount of real property in which they claim an interest to the defendant, the Wi-nona & St. Peter Land Company, which corporation with full knowledge of the fraud, and of all the facts in regard to the plaintiff’s claim, accepted the property, and is selling the same, and refuses to recognize their rights. In the prayer for relief, they ask that this company account to them for their interest in the proceeds of lands sold, and, also, that it be decreed to convey to them the interest claimed in the lands unsold. Surely, then, it is not a formal, but an indispensable adverse party to the controversy, and this relief can only be granted by making it a party to the suit.

The counsel to sustain the removal lays stress upon the answer of the land company, which alleges “that it is unwilling to contend with the plaintiffs in this action, and if the matters at issue between them and its co-defendants are decided in favor of the former, it consents that the matters and facts established and proven against its co-defendants may and shall be considered as established and proven against it, and that judgment may be entered accordingly,” etc. It is urged that this contingent admission of liability has eliminated the land company from any controversy with plaintiffs, and the suit, therefore, has been properly removed. I am not now required to decide upon the effect of this answer as a pleading. If the right to a removal of the suit existed at all, it depended upon the condition of the alleged controversy as it appeared when the complaint was filed, and is not controlled by the answer. The plaintiffs have set up a substantial claim against the defendant land company, and it was a matter of no consequence, and the right of removal did not rest upon the fact, whether it accepted or declined the issue tendered.

Motion to remand is granted.

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NELSON, District Judge.

The removal is claimed under an act of congress approved March 3, 1875. If the defendant, the Wi-nona & St. Peter Land Company is a necessary party to the controversy, the motion to remand must prevail, for there would not then be a controversy wholly between citizens of different states, and the removal is not asked by all the defendants, so that a solution of the question depends upon whether this defendant is such necessary party.

The plaintiffs charge in their complaint, that the defendants who have petitioned for this removal have defrauded them, and also withhold wrongfully, their money, and have conveyed or authorized to be conveyed a large amount of real property in which they claim an interest to the defendant, the Wi-nona & St. Peter Land Company, which corporation with full knowledge of the fraud, and of all the facts in regard to the plaintiff’s claim, accepted the property, and is selling the same, and refuses to recognize their rights. In the prayer for relief, they ask that this company account to them for their interest in the proceeds of lands sold, and, also, that it be decreed to convey to them the interest claimed in the lands unsold. Surely, then, it is not a formal, but an indispensable adverse party to the controversy, and this relief can only be granted by making it a party to the suit.

The counsel to sustain the removal lays stress upon the answer of the land company, which alleges “that it is unwilling to contend with the plaintiffs in this action, and if the matters at issue between them and its co-defendants are decided in favor of the former, it consents that the matters and facts established and proven against its co-defendants may and shall be considered as established and proven against it, and that judgment may be entered accordingly,” etc. It is urged that this contingent admission of liability has eliminated the land company from any controversy with plaintiffs, and the suit, therefore, has been properly removed. I am not now required to decide upon the effect of this answer as a pleading. If the right to a removal of the suit existed at all, it depended upon the condition of the alleged controversy as it appeared when the complaint was filed, and is not controlled by the answer. The plaintiffs have set up a substantial claim against the defendant land company, and it was a matter of no consequence, and the right of removal did not rest upon the fact, whether it accepted or declined the issue tendered.

Motion to remand is granted.

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Bluebook (online)

14 F. Cas. 1169, 10 Chi. Leg. News 11, 23 Int. Rev. Rec. 320, 1877 U.S. App. LEXIS 1854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/latham-v-barney-circtdmn-1877.