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3 F.(20) 720 found in Drascovich v. Equitable Trusted and paid prior to that date. It is worthy Company of New York, 3 F.(20) 724, just of observation that counsel for the Equitadecided.

ble Trust Company, in their brief, recognizThe present controversy is a petition of ed the impropriety of the trust company's the Equitable Trust Company, the complain- taking part in this controversy, "because it ant in the foreclosure proceedings, for ad- could hardly help placing itself in hostility ditional compensation of $3,500, to be paid to some of the bondholders and favoritism by the special master to Jared How, one of to others." The explanation was made, howthe counsel, for services after August 29, ever, that counsel for the trustee in his argu1916. This additional compensation is to ment asserted that it was not to be underbe paid out of a fund remaining in the stood as an argument in advocacy of the hands of the special master, which, in his cause of any bondholder against any other, third supplemental report, dated September but was merely an attempt to aid the court 25, 1923, he stated was interest, amounting to a just disposition of the interest money. to $18,847.79, accumulated upon funds he This was the duty of the counsel under any held and had deposited on interest for the circumstances, and does not, in our opinion, payment of bondholders who had not pre- call for further compensation, in addition to sented their bonds to the special master for the liberal compensation he had already repayment prior to October 28, 1916.

ceived. In the lower court the attorneys repre- We may therefore place our affirmance of senting these nonappearing bondholders ob- the decree of the lower court upon the jected to the payment of this claim out of ground that it does not appear that the funds belonging equitably to these nonap- claim is superior in its equity to that of the pearing bondholders. They said: “We see bondholders, in whose favor it has been deno reason whatever why any part of this creed in Drascovich v. Equitable Trust Co., interest money should be paid to Mr. How, supra. the attorney for the majority bondholders, as a fee or otherwise. The special master had his own attorney, Mr. Thomas. It does not appear that Mr. How was ever employ- 'BOSTON ACME MINES CORPORATION et ed by the special master, nor does it appear al. v. SALINA CANYON COAL CO. et al. from Mr. How's affidavit that he has ever performed any services on behalf of the

(Circuit Court of Appeals, Eighth Circuit. bondholders in connection with this fund.

January 10, 1925.) The mere fact that the trustee for the ma

No. 6715. jority bondholders is willing that Mr. How should receive $3,500 out of the fund seems

1. Trial @m2Court may set aside order con.

solidating causes. to us to furnish no reason for its payment."

The court has power to set aside an order The court disallowed the claim, and the com consolidating causes for trial, and orders replainant has appealed.

manding one of the causes to the state court In Drascovich v. Equitable Trust Co. of and dismissing the other have the effect of vaNew York we affirmed the decree of the cating the order of consolidation. District Court, holding "that funds left in 2. Courts. 405(5)–Review by Supreme the hands of the special master after Octo- Court is given only where jurisdiction of Disber 28, 1916, and not withdrawn by the

trict Court as federal court is involved,

Where a cause is dismissed by a District beneficiary entitled thereto, were funds be

Court on the ground that a prior action is pendlonging equitably to the beneficiaries in the ing in a state court involving the same subjectproportionate distribution ordered, and if matter, the dismissal is not for lack of juristhe special master, under the order of the diction as a federal court, which alone makes

Is it reviewable by the Supreme Court, and denies court, kept such money on deposit in bank

jurisdiction to the Circuit Court of Appeals, at interest, such interest belongs in equity under Judicial Code, &$ 128, 238 (Comp. St. $$ to the beneficiaries identified by the order, 1120, 1215). whose money was left in the hands of the

me 3. Courts C-493(3)–Pendency of suit to quiet special master and earned the interest."

title in state court excludes jurisdiction of In this petition we are dealing with the subject-matter by federal court. same fund, and we must treat it in the same A suit in a state court to quiet title, brought manner. Its equitable ownership has al- under Comp. Laws Utah 1917, § 7247, is in the ready been determined. It is the accumu

nature of a suit in rem, and gives that court lated interest on bonds not presented to the to the exclusion of that of a federal court in a

priority of jurisdiction over the subject-matter, special master prior to October 28, 1916, as suit between the same parties, brought subsedistinguished from bonds that were present- quently and while the state suit is pending.

4. Courts 493(3)-Intervener held party, so court and counsel, it appears that, after as to preclude suit in another court over same

evidence had been produced in the suit for subject-matter. Where corporation petitioned for leave to

a number of days, the court was of the intervene in suit brought in a state court to opinion that one of two suits which had quiet title, alleging that the defendant was its been consolidated and heard together was agent, and that it was the real party in inter; improperly removed from the state court, est, held, that it became a party, as respected and an order was made remanding that suit. its' right to bring a suit in a federal court in: After this remand the court expressed the volving the same subject-matter. 5. Appeal and error Om674_Error not predi- ed States court was so nearly identical with

opinion that the suit remaining in the Unitcable on ruling as to priority of jurisdiction, the suit which was remanded that the conwhen necessary facts not shown.

Error cannot be predicated on holding of troversy should be determined in that suit, District Court that state court had priority of inasmuch as it had been begun before the jurisdiction over the subject-matter, where the suit was filed in the United States court, allegations of the original bill, filed in the federal court before the complainant in that court and thereupon the order of dismissal was intervened in the action in the state court, are

entered. The specifications of error chalnot shown by the record.

lenge the orders thus made. The parties 6. Courts ww3511/2—Dismissal of suit on the will be referred to as they appeared in the

ground of prior jurisdiction of state court suits in the trial courts. held error as to parties and issues not in

The first suit was begun in the state court volved in state suit.

on June 8, 1922, by the Salina Canyon Coal Where a suit brought in a federal court during the pendency of a suit involving the Company, hereafter called Salina Company, same subject-matter in a state court included as plaintiff, against Emil J. Klemm, as denew parties in addition to those in the state fendant. The complaint alleged that the suit, and involved issues between those parties, plaintiff was the owner and was in the posit was error to dismiss the suit as to them session of coal and other minerals, and of because of the prior jurisdiction of the state court.

the timber necessary to be used in mining

them on and in a large tract of land in 7. Action Om69—Prior jurisdiction of state

court ground only for stay of subsequent suit Sevier county, Utah, and of an undivided in federal court.

one-third interest in all coal or underground Priority of jurisdiction of a state court minerals in other lands adjacent to these over the subject-matter of a later suit in a and alleged that the defendant claimed, federal court is ground only for stay of the without right, an interest in these lands adlatter suit, and not for its dismissal.

verse to the plaintiff, and prayed that its Appeal from the District Court of the title be quieted as against the defendant's

claim. United States for the District of Utah;

Four days later, and on June 12, Tillman D. Johnson, Judge.

1922, the Boston Acme Mines Development

Company, hereafter called Development Suit in equity by the Boston Acme Mines Company, filed a bill in the United States Corporation and others against the Salina District Court for the District of Utah, Canyon Coal Company and others. From against the Salina Company, R. M. Lehman, a decree dismissing the bill, complainants Carl A. Mattsson, Banard E. Mattsson, and appeal. Modified.

the wives of the last named two defendFrom a decree dismissing the plaintiffs' ants. None of the allegations in this bill, bill, this appeal has been taken. The de- or in an amended bill filed in the same case cree recites that the case came on for trial by the Development Company two days latin open court, and that evidence was pro- er, are contained in the record, except those duced on behalf of the plaintiff; that the relating to the citizenship of the parties and defendants thereupon moved that the case the amount in controversy. be dismissed for lack of jurisdiction, and The Development Company on July 1, that the court sustained said motion and 1922, filed a combined answer and petition ordered that the case be dismissed, without in the suit in the state court, praying that costs, and continues as follows: “Thereup- it be permitted to intervene for the purpose on, by virtue of the law and by reason of of removing the suit to the United States the premises aforesaid, it is considered, or- court. In this petition there was a denial dered, and adjudged by the court that the of the allegations of ownership and posplaintiff take nothing by its bill in equity session contained in the Salina Company's herein, and that said defendants go hence petition, and an allegation that the interhereof without day, and the bill in this case vener was the actual and equitable owner of be dismissed." From a colloquy between the property. The petition of intervention

3 F.(20) 729 alleged that Klemm had acted as the agent to the bill in the suit begun in the United . of the intervener in contracting with the States court, but the record does not show owners of the land for the purchase of the what they were. On September 7, 1922, a coal and mineral rights, although Klemm stipulation was made between the Develophad executed the contract in his own name ment Company and the Salina Company as purchaser. There were further allega- and Lehman, reciting that the parties, subtions that Lehman, acting as an agent or ject-matter, and issues to be tried in the two trustee for the intervener and obligated to actions then pending were substantially the complete the payments to the vendors under same throughout, and that a decision in one the contract which Klemm had made, had would be an effective disposition and decifailed to execute his trust, and had pro- sion in the other, and that they might be cured the title to the property to be taken consolidated, both for settling pleadings and in his own name, and had organized the for trial; that the answer and counterclaim Salina Company as a corporation, in which of the Development Company in the suit he had had nearly all of the capital stock removed from the state court should be takissued to himself, and had conveyed the en as the bill in the other case, being in property to it, but in trust for himself. substance the same, and but little different

There were other allegations as to claimed in verbiage from the amended. bill filed on breaches of trust by Lehman as to other August 12, 1922. Further stipulations were property. The intervener asserted that made as to filing the answer and counterLehman and the Salina Company held all claim of the Salina Company and Lehman of this property in trust for the intervener, in the case begun in the United States court and that the title thereto should be decreed and as to a reply thereto, and providing to be in the intervener. Claiming that, that the consolidated cases should then be therefore, a separable controversy existed at issue. between the Salina Company and itself, the On the day this stipulation was filed the prayer, as stated, was that the Develop- court made an order generally following the ment Company should be allowed to inter- terms of the stipulation, and providing that vene for the purpose of removing the suit the two actions "are hereby consolidated, to the District Court of the United States. both for settling the pleadings, and for A bond was filed and an order of removal trial on the merits, and for all purposes of was made upon this petition by the state appeal or review, until final disposition of court on July 3, 1922.

the cases as one case." At a later date, on The Development Company filed an an- November 25, 1922, another amended bill of swer and counterclaim in this suit on Au- complaint was filed, in which the Boston gust 22, 1922. Only a portion of it is con- Acme Mines Corporation appears as a cotained in the record, but it recites that the plaintiff with the Development Company. Development Company had theretofore in. By this amended bill Klemm was made a tervened and been made a party, answered defendant for the first time to the suit beto some of the allegations of the Salina gun in the United States court. In this Company's complaint, and set forth what it amended bill was set forth more at length stated was a counterclaim. A reply was the allegations which the Development Comfiled by the Salina Company on September pany had outlined in its answer and peti14, 1922. Meanwhile in the suit which the tion in intervention filed in the state court. Development Company had begun in the The relationship of the Boston Acme Mines United States court the Salina Company Corporation to the Development Company and Lehman had filed an answer and coun- was also alleged as that of parent and subterclaim on July 29, 1922. Only a portion sidiary corporations, one holding the stock of this pleading is in the record, but it ap- control of the other. The agency and truspears from the portion of the counterclaim teeship of Klemm and of Lehman for the pleaded that these defendants asserted that plaintiffs was alleged, and the acts of each the Salina Company was the owner and in taking title in his own name, which were was in possession of the property, and they alleged as done for the benefit of the plainalleged that the Development Company tiffs, and the prayer was for a decree declaimed some interest therein, asserted that claring that the defendants held the propit had no estate or interest whatever, and erty in trust for the plaintiffs. The pleadprayed that the title of the Salina Com- ing contained: “And by way of answer to pany should be quieted as against any the complaint of the Salina Canyon Coal claim of the Development Company. Some Company in its suit No. 6889 herein, begun amendments were made on August 12, 1922, and filed in the district court of Sevier

· county, Utah, and removed into this court, tiff the Boston Acme Mines Corporation the complainants admit,” and proceeded to This was entitled as follows: “Boston Aeadmit or deny the allegations in that com- me Mines Corporation and Boston Acme plaint.

Mines Development Company, CorporaOn January 9, 1923, the Salina Com- tions, Complainants (No. 6792), v. Salina pany, Lehman, and others answered to this Canyon Coal Company, a Corporation, R. last amended bill of the Boston Acme Mines M. Lehman, Carl A. Mattsson, Nora MattsCompany and of the Development Com- son, Banard E. Mattsson, Maude Mattspany, and included a counterclaim, again son, and Emil J. Klemm, Respondents, Conasserting the claim of the Salina Company, solidated with Salina Canyon Coal Comand praying that its title be quieted. pany, a Corporation, Plaintiff (No. 6889), Klemm answered, adopting all the aver- v. Emil J. Klemm, Boston Acme Mines Dements of the Boston Acme Companies and velopment Company, Boston Acme Mines disclaiming any interest in the property, Corporation, Defendants, R. M. Lehman, except as trustee for the Development Com- Carl A. Mattsson, Nora Mattsson, Banard pany, and denies the allegations of the an- E. Mattsson, and Maude Mattsson, Defend. swers and counterclaims of the Salina Com- ants to counterclaim.” pany and of Lehman. The case came on The amended bill begins as follows: for trial before the court upon these last “Come now the above-named Boston Acme pleadings, and testimony was heard for five Mines Corporation and Boston Acme Mines days by the court. None of this testimony Development Company, and humbly comis preserved in the record. After this testi- plaining of the several parties above named mony had been given the court made the as respondents in case No. 6792, orders' of which complaint is now made in and alleges,” etc. Thereupon the plaintiffs this appeal taken by the Development Com- set forth their claims to the property in pany and the Boston Acme Mines Corpora- question, and pray for a decree finding that tion.

the defendants named have no right, title, P. G. Ellis, of Salt Lake City, Utah' or interest in the property, except as in (Thomas Marioneux, of Salt Lake City, trust for the plaintiffs, and for an order Utah, on the brief), for appellants.

requiring a conveyance to the Development Mahlon E. Wilson, of Salt Lake City, Company, and for costs. The bill then con

tinues: Utah (L. Eggertsen Cluff, Frederick C.

“And by way of answer to the Loofbourow and Albert R. Barnes, all of complaint of the Salina Canyon Coal ComSalt Lake City, Utah, on the brief), for pany in its suit No. 6889 herein, begun and appellees.

filed in the district court of Sevier county, Before LEWIS, Circuit Judge, and plainants admit," etc., following by admis

Utah, and removed into this court, the comMUNGER and MILLER, District Judges. sions and denials and averments.

The Salina Company, Lehman, and the MUNGER, District Judge (after stating Mattssons answered this amended bill, and the facts as above). Much of the argument the Salina Company set up as a counterof appellants is given to questioning the claim substantially the same allegations conpropriety of the order remanding the case tained in the original bill filed in the state of the Salina Company against Klemm and court, except that the Development Comthe Development Company to the state pany and the Boston Acme Mines Corporacourt. It is claimed that after the order of tion, as well as Klemm, were alleged to consolidation was made there was only one claim some interest in the property and a suit in the United States court, and there- decree was prayed quieting the title of the fore there was no suit to be remanded. Salina Company as against each of these The order provided that the two actions three defendants. Klemm answered the were consolidated, both for settling the "amended bill” and “the complaint of the pleadings and for trial on the merits, and Salina Canyon Coal Company in case No. for all purposes of appeal or review, until 6889," adopting all the allegations of the final disposition of the cases as one case. Boston Companies and also denied the alleThe two cases had been known by their gations of the "complaint in case 6889 and docket numbers, 6889 and 6792. After this in its replica, the counterclaim of the Saorder was made the Salina Company filed a lina Canyon Coal Company in Case Na reply in cause No. 6889, and the Develop- 6792.” It will be seen that the parties, aftment Company filed another amended bill the order of consolidation, kept the of complaint, joining with it as a coplain- pleadings separate and distinct in the two

3 F.(20) 729 cases, treating each case as if it still exist- the court was of the opinion that, after ed as a separate suit. At the trial there having remanded case No. 6899 to the state was continued reference to each of the cases court, there was such a conflict of jurisdicby the separate numbers, and finally mo- tion between the state court in that case tions were made by the Salina Company to and the United States Court in case No. remand the case No. 6889, and to dismiss 6792 that the latter court was prevented the case No. 6792.

from exercising jurisdiction to determine [1] The order of the court made on Sep- the issues in case No. 6792, and therefore tember 26, 1923, was that case No. 6889 be the dismissal was entered. remanded to the state court, and the order The review that is given to the Supreme made September 27, 1923, was that case No. Court and denied to this court by sections 6792 be dismissed, that the plaintiff take 128 and 238 of the Judicial Code (Comp. nothing by its bill in equity, and that the St. $$ 1120, 1215), in cases where the judefendants go hence without day. In this risdiction of the District Court is in issue, condition of the record, it cannot be said is given only in those cases where the juristhat there was but one suit pending at the diction of the District Court as a federal time of the orders complained of. By their court is involved; but, where the dismissal pleadings the parties had kept the issues is on the ground that a prior action is separate in each of the cases. Furthermore, pending in the state court of such a nature the court had power to make an order set- as may lead to a conflict between the courts ting aside the order of consolidation (Col- as to matter in controversy, the dismissal burn v. Hill, 101 F. 500, 507, 41 C. C. A. is not for lack of jurisdiction as a federal 467; 1 Corp. Jur. 1137, 1138), and the court, but because of the general principles order remanding one of the cases and dis- of jurisprudence and of the rules governing missing the other had the effect of vacating the action generally of courts of concurthe order of consolidation. The trial court rent jurisdiction in their relations to each was of the opinion that case No. 6889 was other. Louisville Trust Co. v. Knott, 191 improperly removed, because the defendant U. S. 225, 233, 235, 24 S. Ct. 119, 48 L. Klemm was a necessary party, and both he Ed. 159; Bache v. Hunt, 193 U. S. 523, and the plaintiff were citizens of Utah. 525, 24 S. Ct. 547, 48 L. Ed. 774; Fidelity We are precluded from a review of the ac- Trust Co. v. Gaskell, 195 F. 865, 869, 115 tion of the court remanding this case, both C. C. A. 527. This court, therefore, has juby the terms of section 28 of the Judicial risdiction of this appeal. Code? which provides, “Whenever any cause [3] The appellants claim that there was is removed from any state court into any no conflict of jurisdiction between the cases District Court of the United States, and the in the state and federal court, because the District Court shall decide that the cause suit in the state court was not an action in was improperly removed, and order the rem, and that court had not taken possessame to be remanded to the state court from sion of the property involved. The suit in whence it came, such remand shall be im- the state court alleged the ownership and mediately carried into execution, and no possession in the Salina Company of coal, appeal or writ of error from the decision mineral, and timber in and upon 2,410.35 of the District Court so remanding such acres of land in Utah, asserted that the decase shall be allowed,” and by the fact that fendant Klemm claimed, without right, the appeal was taken only from the decree some interest therein, and prayed a decree of September 27, 1923, and did not purport barring him from asserting any further to be taken from the order of remand en- claim. This was a suit to quiet the plaintered September 26, 1923.

tiffs' title, permitted in this form by sec[2] The appellees object to a review of tion 7247 of the Compiled Laws of Utah the decree of dismissal on the ground that 1917. Parley's Park Silver Mining Co. v. the trial court dismissed the suit for want Kerr, 130 U. S. 256, 261, 9 S. Ct. 511, 32 of jurisdiction, and therefore an appeal L. Ed. 906; Glasmann v. O'Donnell, 6 should have been taken to the Supreme Utah, 446, 450, 24 P. 537. It was not an Court. On the face of the decree the judg- ordinary action in personam, but was in the ment appears to have been on the merits, nature of a suit in rem, and sought a debut, looking at the grounds for the dismiss- cree declaring the title to the property. al, as the appellees do in their discussion The rule governing as to suits of this naof this proposition, it appears that the ap- ture was stated by this court in Zimmerpellees made a motion for a dismissal of man v. So Relle, 80 F. 417, 420, 25 C. C. case No. 6792 for lack of jurisdiction, and A. 518, 521, as follows:

Comp. St. { 1010.

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