Wetherby v. Stinson

WOODS, Circuit Judge (after stating the case). The hill shows that when the suit was begun the complainant and Robertson, one [176] 'of the respondents, were citizens of the same state, and, though not suggested in the briefs or at the hearing, we are compelled to recognize the lack of federal jurisdiction over the case. Railway Co. v. Swan, 111 U. S. 379, 382, 4 Sup. Ct. 510; Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. 912; Burnham v. Bank, 10 U. S. App. 485, 3 C. C. A. 486, 53 Fed. 163. Robertson’s disclaimer did not cure the defect, because, if for no other reason, he was not dismissed out of the case, but remained a party to the end. Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. 1034, 1161; Sloane v. Anderson, 117 U. S. 275, 6 Sup. Ct. 730; Phelps v. Oaks, 117 U. S. 236, 6 Sup. Ct. 714; Wire Hedge Co. v. Fuller, 122 U. S. 535, 7 Sup. Ct. 1265; Torrence v. Shedd, 144 U. S. 527, 12 Sup. Ct. 726. In fact, his disclaimer was not to the entire bill, but was accompanied by a denial of the alleged confederacy and combination, and therefore did not entitle him to be dismissed with costs. Story, Eq. Pl. § 844; 1 Daniell, Ch. Pl. 707. “The proper course to be pursued by the plaintiff,” says Daniell, at page 709, “after a disclaimer to the whole bill has been filed, is either to dismiss the bill as against the party disclaiming, with costs, or to amend it; or, if he thinks the defendant is not entitled to his costs, he may set the cause down upon the answer and disclaimer, and bring the defendant to a hearing.” It does not follow, therefore, from the mere filing of a disclaimer, no matter what its scope, or what the nature of the case, that the one disclaiming ceases to be a party, though, if he be charged only with asserting a claim, he may, by disclaiming, become entitled ordinarily to be dismissed with costs. It is seldom, however, that a disclaimer may be put in alone or without answer, and in this case, irrespective of conspiracy and combination', of which Robertson was not directly charged, it is doubtful whether a disclaimer was appropriate or admissible. The bill shows that Emmett had conveyed the land in controversy to Robertson in trust, to be platted by him, and that Robertson conveyed or attempted to convey to the eleven persons who composed the original syndicate. These facts involve important questions, which, it would seem, cannot well be determined in a suit to which Robertson is not a party. For instance: Did Emmett part with his title, or did he confer upon Robertson simply a power to do the platting contemplated? And, when that was done, did the conveyance or deed cease to be of effect, or was it necessary that there should be a reconveyance to Emmett? Whatever the right, title, or power conferred' upon Robertson, could he make a transfer to others, and was his deed to the eleven totally void, or did it vest the grantees with some .right, title, or power? If the title remained in Robertson, it is doubtful whether, by a disclaimer, especially when signed, as this was, only by his counsel, he could divest himself of the title. To say the least, it was important, as the plaintiff recognized it to be, that Robertson should be made a party to the case, and, notwithstanding the disclaimer, it was hardly less important that until final decree was rendered he should remain a party. No motion or order for his discharge was made, and he in fact continued in the casé to the end, and, with the other defendants,' was given judgment for costs. Whether or not, even if the disclaimer had been complete [177] and appropriate to the entire bill, and the party had been dismissed from the ease, the jurisdiction would have been thereby established or acquired, we need not consider. Upon the facts as they are, the lack of jurisdiction is clear, and it follows that the decree dismissing the bill for want of equity should be set aside, and a dismissal for want of jurisdiction should be entered, but without costs. Mayor v. Cooper, 6 Wall. 247; Barney v. Baltimore City, Id. 280; Hornthall v. Collector, 9 Wall. 560; Railway Co. v. Swan, supra; Grace v. Insurance Co., 109 U. S. 278, 3 Sup. Ct. 207; Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. 523. We think, too, that costs should not be allowed in this court. So ordered.