Day v. Oatis ( 1904 )

Whitfield, C. J.,

delivered the opinion of the court.

The bill in this case was filed by L. E. Graham, S. EL Kirkland, citizens of Scott county, and Mrs. B. E. Oatis, a citizen of Oopiah county, Mississippi, against R. N. Day, a citizen of Minnesota, averred in the bill to be domiciled in New Orleans, La., and the Kreutzer-Winton Company, a corporation of Mississippi, domiciled in Scott county, Mississippi. The bill was one to remove clouds from- title. It averred the complainants to be the legal owners in fee simple of certain lands, and charged that the defendants set up some claim to the same, and prayed a cancellation of the defendants’ title. It appears on the face of the bill that the title of both complainants and defendants rests upon the validity of a tax title made in pursuance of a sale for taxes on the 6th of. May, 1861, by W. EL Rogers, tax collector of Scott county, at which A. B. Smith, the father of two of the complainants, became the purchaser. It further appears from the bill that the Kreutzer-Winton Company claims an undivided one-half interest in said lands under a deed from William C. Winton, and that R. N. Day claims an undivided one-half interest under certain conveyances from the Kents. In all the deeds from the Kents to Day, Winton is a cograntee, these deeds being made in December, 1902; and Winton thereafter conveyed his ene-half interest, by deed of date April 15, 1903, to the Kreutzer-Winton Company. The Kreutzer-Winton Company filed a disclaimer at the February term, 1903, averring that it did not have any right, title, or interest in any of said lands, but had conveyed all its title in said lands to A. L. "Kreutzer and W. C. Winton, and further averring that it, the said corporation, was wrongfully made a pax*ty defendant, -and that said Kreutzer and Winton were proper. and necessary parties defendant, and praying to be discharged. The complainants not having afterwards made the said Kreutzer and Winton parties defendant, R. N. Day filed his petition for removal to the circuit coux*t of the United States for the southern district of Mississippi on the 4th day of November, 1903, accompanying it with the proper bond. The complainants thereupon, without offering any evidence xipon the motion, took the rather xxnusual course of demurring to the petition for removal,- resting the demurrer upon three grounds: First, because the United States circuit court had no juxúsdiction; second, because the state court had exclusive jurisdiction; and third, because, upon the face of the pleadings, it appeared that the cause of action was not a separable one. The court sustained this demurrer, expressly setting out that it did so as a matter of law on the face of the pleadings, holding the cause not to be properly removable. The defendant Day excepted, and bxdngs the case to this court.

The first two grotxnds of demurrer are disposed of adversely to appellee’s contention by the very clear and accurate opinion of Shelby, J., in Pine Land Co. v. Hall, 105 Fed. Rep., 88 (44 C. C. A., 363, decided in 1900). The complainants, having chosen to demur, cannot aid themselves hex*e by reference to what evidence would show. Looking, therefore, to all the pleadings, the state of the ease made for our decision is this: That the complainants were all citizens of Mississippi, and the corporation having disclaimed and been eliminated from the suit, and Kreutzer and Winton not having been made parties defendant, R. N. Day appears as the sole defendant at the time the petition for removal was filed, and, indeed, so appears from the filing of the disclaimer by the corporation in February, 1903, some ten months before tbe petition for removal was filed, during all of which time complainants had failed to make Winton and Kreutzer defendants. It is said by counsel for complainants that tbe diversity of citizenship necessary to removal must exist both at tbe time when tbe action was begun in tbe state court and at tbe time when tbe petition for removal was filed. This is true, but what is meant is, not that mere allegations in tbe pleadings should so show, but that in fact and in truth tbe diverse citizenship did so exist. See, to this effect, Anderson v. Watts, 138 U. S., 694 (11 Sup. Ct., 449; 34 L. ed., 1078). And because this is so tbe better practice is to meet the petition for removal with evidence, and not to demur. Complainants, however, insist that, looking, as we must on demurrer, to tbe'face of tbe pleadings alone, tbe corporation appears to be a resident defendant both at tbe time of tbe filing of tbe bill and at tbe time of tbe petition for removal, and that it is not competent to change tbe situation of tbe cause as a removable one by having tbe corporation disclaim interest and retire from tbe suit. It is said on this point in Black’s Dillon on Bemoval of Causes, p. 132: “It has sometimes been held (principally by tbe state courts) that, although tbe action, as originally commenced, is not wholly between citizens of different states, yet if it is so changed by striking out parties, or by a release or disclaimer on tbe part of some of tbe defendants, that thereafter it remains between parties all of whom possess tbe requisite citizenship, a removal may then be had;”, citing cases from Georgia, Texas, and Massachusetts. See especially, as expressing our view, the Massachusetts case, Danvers, etc., v. Thompson, 133 Mass., 182. Tbe editor then adds: “But these rulings do not seem to be consistent with tbe decisions of tbe United States supreme court to tbe effect that tbe federal jurisdiction depended upon tbe condition and citizenship of tbe parties at tbe time of tbe institution of the suit in -the state court;” citing Anderson v. Watts, supra. But we think the rule announced in the decisions of the state courts referred to is not in conflict with the holding of the United States supreme court. We think the editor, Mr. Black, takes too narrow a view of those decisions. We have examined all the eases which have been referred to by counsel for appellee, and others, and we do not think it can be properly gathered from the federal decisions that the rule adopted by the state courts referred to would not be pronounced the correct rule by the United States supreme court. To our minds, it is the reasonable and sound view. The court is to deal with the real parties to the litigation, not those who disclaim interest and retire from the contest; and certainly with reference to those real parties the question of removal on the ground of diversity of citizenship should be decided.

It results from, these views that the demurrer should be, and is hereby, overruled, and the cause remanded for further proceedings in accordance with law.