Massachusetts & S. Construction Company v. Township of Cane Creek/Opinion of the Court

by David Josiah Brewer

United States Supreme Court

155 U.S. 283

Massachusetts & S.C.onstruction Company  v.  Township of Cane Creek

The plea to the jurisdiction should have been sustained. The substantial object of the suit was to obtain possession of the bonds. The deposit and trust company was the party in possession, and, although it claimed no interest in the bonds, as against the plaintiff and its codefendant, yet possession could not be enforced in favor of the plaintiff except by a decree against it. Where the object of an action or suit is to recover the possession of real or personal property, the one in possession is a necessary and indispensable, and not a formal, party. The case of Wilson v. Oswego Tp., 151 U.S. 56, 14 Sup. Ct. 259, is decisive on this point. In that case a suit was commenced in a state court in Missouri to recover possession of certain bonds in the custody of the Union Savings Association. There were several defendants (among them, one Montague) and an intervener, Oswego township, who, claiming the bonds, removed the case, on the ground of diverse citizenship, to the federal court. Such removal was adjudged to be erroneous, this court holding that 'the Union Savings Association, being the bailee or trustee of the bonds, was a necessary and indispensable party to the relief sought by the petition, and that, defendant being a citizen of the same state with the plaintiff, there was no right of removal on the part of Montague or of the intervening defendant, the Oswego township, on the ground that the Union Savings Association was a formal, unnecessary, or nominal party.'

Further comment is not required. The decree of the circuit court must be reversed and the case remanded, with instructions to sustain the plea and to dismiss the bill for want of jurisdiction.

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