Cuebas Y Arredondo v. Cuebas Y Arredondo, 223 U.S. 376 (1912)
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Cuebas y Arredondo v. Cuebas y Arredondo
No. 159
Submitted January 24, 1912
Decided February 19, 1912
223 U.S. 376
APPEAL FROM THE DISTRICT COURT OF THE
UNITED STATES FOR PORTO RICO
Syllabus
Errors assigned as to finding of citizenship of a party dismissed from the suit at instance of appellant are not here for review except as to the force and effect to be given to a decree pro confesso against other defendants before dismissal of the bill.
Under the Foraker Act of April 12, 1900, 31 Stat. 85, c. 191, jurisdiction of the district court of the United States was that of the district and circuit courts of the United States; the additional jurisdiction conferred by the Act of March 2, 1901, 31 Stat. 953, c. 812, did not extend the jurisdiction so as to embrace all controversies in which any litigant on either side is a citizen of the United States or a subject of a foreign country.
The District Court of the United States for Porto Rico has not jurisdiction of a cause in which the sole plaintiff is a citizen of Porto Rico and any of the defendants are citizens of Porto Rico, notwithstanding one or more of the defendants may be citizens of the United States or of a foreign country.
By the Act of March 2, 1901, Congress did extend the jurisdiction of the United States District Court for Porto Rico by cutting down the necessary jurisdictional amount and dispensing with diversity of state citizenship, by substituting United States citizenship therefor.
The final decree following a pro confesso order is only such a decree as would be authorized by the state of the pleadings when the order was entered.
If a bill is fatally defective, showing that the court had no jurisdiction, it is error to allow a pro confesso; the order should be vacated, and the defaulting defendant allowed to defend.
Where an amendment is allowed that changes the character of the bill and creates a jurisdiction not theretofore existing, the court should set aside a default and give time to defend.
A decree nunc pro tunc presupposes a decree allowed or ordered, but not entered through inadvertence of the court or a decree under advisement when the death of a party occurs. Mitchell v. Overman, 103 U.S. 62.
No attempt at revision having been made at any time, there is no ground to enter a decree nunc pro tunc in this case on any known ground of equity procedure. Gray v. Brignardello, 1 Wall. 627.
3 P.R.F. 67 affirmed.
The appellant, asserting herself to be a citizen of the Island of Porto Rico, filed this bill to foreclose a mortgage upon a plantation on the island called "Carmelita." The defendants to the bill were three in number, namely, Cuebas y Arredondo, alleged to be a citizen of the United States, residing in Porto Rico, Francisco Antongiorgi, described as a citizen of and residing in Porto Rico, and El Banco Territorial y Agricola, alleged to be a corporation organized under the laws of Spain and a citizen thereof, doing business in the Island of Porto Rico, with its principal place of business in the City of San Juan.
The averments as to the title and encumbrances upon the said plantation, and the interests asserted by way of lien, or mortgage, by the defendants Antongiorgi and El Blanco Territorial, etc., hereafter referred to as the bank, are complex, and for the purposes of this case, upon the question now for decision, need not be stated otherwise than to say that the bill alleged that they
have or claim some interest in said mortgaged premises, or in some part thereof, as purchasers, mortgagees, or otherwise, the exact nature and extent of which interests are unknown to your orator, if any at all they have, but the same are inferior and subsequent to the lien of the mortgage of your orator and subject thereto.
Aside from the usual prayer for a decree declaring and enforcing the lien of the mortgage asserted by a sale, etc., the bill asked that
the defendants and all persons claiming under them subsequent to the commencement of this suit, and all other persons, although not parties to this suit, who have any liens or claims thereon by or under any such subsequent judgment or decree, either as purchaser, encumbrancer, or otherwise, may be barred and foreclosed of all equity of redemption in the said premises, and that your orator may have such other and further relief as the nature of the case may require, and as to this court may seem meet and agreeable to equity and good conscience.
The bill was filed April 6, 1904, in the District Court of the United States for Porto Rico.
On July 11, 1904, the three named defendants, though duly summoned to appear by a rule day named and make their defense, made default, and the bill was on that day taken for confessed under Equity Rule 19 et seq.
In March, 1905, the bank was permitted to file its answer, in which it denied the equities of the bill and asserted its own superior right under mortgages, judicial sale, and by estoppel.
In October, 1906, it was permitted to withdraw its answer and file a plea to the jurisdiction. That plea was in these words, omitting the formal parts and conclusion:
That this Court ought not to further take cognizance of the said bill of complaint, because this defendant says that, at the time of the filing of the same, the complainant herein was and still is a citizen of the Island of Porto Rico, and resident of the same, and this defendant was and is a corporation organized and doing business under and by virtue of the laws of said Island of Porto Rico, and was and is a citizen of the same, and each and all of the other defendants herein are citizens and residents of the said Island of Porto Rico, and that therefore this is a suit by and between citizens and residents of the said Island of Porto Rico, of which this Court has no jurisdiction.
That, as shown by the said bill of complaint, the jurisdiction of this Court over and of this suit is sought to be maintained not by reason of any federal question being involved herein, but solely and only by reason of the alleged diverse citizenship of the parties herein and hereto, and that, as shown by the allegation of the said bill of complaint, the defendant is alleged to be a citizen of Spain, and another of the defendants, to-wit, Felipe Cuebas y Arredondo, is alleged to be a citizen of the United States of America, and another of said defendants, to-wit, Francisco Antongiorgi, is alleged to be a citizen of Porto Rico, and that therefore it affirmatively appears by the allegations of the said bill, if the same are true as therein alleged, that this is a case of which this Court has not jurisdiction.
After first overruling this plea, for reasons set out in an opinion (4 P.R.F. 120), a rehearing was allowed and the plea sustained upon the ground that the bank was not a corporation of Spain, but one existing under the laws of Porto Rico, and a citizen of that island for jurisdictional purposes.
Prior to this action upon the plea of the bank, the date not appearing, the complainant voluntarily dismissed her bill as to Francisco Antongiorgi, whom the bill had averred to be a citizen of Porto Rico.
The judgment on the plea of the bank, above set out, was that, for lack of the requisite diversity of citizenship, the bill should stand dismissed "unless, within five days from this date, the bill can be amended so as to give the court jurisdiction."
Thereupon complainant entered an order, entitled: "Irene Cuebas y Arredondo vs. Felipe Cuebas y Arredondo et al.," which is in these words:
Comes now the complainant above named, by her solicitors, F. L. Cornwell and N. B. K. Pettingill, and, in pursuance of the permission granted by the court in its order of the 7th day of June, 1909, conditionally dismissing said bill of complaint, hereby amend their said bill of complaint for the purpose of retaining jurisdiction in this Court by dismissing the same as to said defendant El Banco Territorial y Agricola.
And in order to make said bill of complaint conform to such dismissal, they hereby amend the same in the following particulars, to-wit:
1. By striking from the same the last four lines of the preliminary paragraph of said bill in which the parties thereto are stated.
2. By striking out paragraph number X of said bill of complaint.
3. By striking out the name of said El Banco Territorial y Agricola wherever the same appears in the prayer for relief and in the prayer for process contained in said bill.
And said bill of complaint having been heretofore amended so as to dismiss one Francisco Antongiorgi as a defendant therein, and being now amended so as to dismiss the same as to said El Banco Territorial y Agricola, complainant hereby elects to proceed with the same as against the defendant Felipe Cuebas as sole defendant.
Thereupon the complainant moved the court for a final decree against the sole defendant Felipe Cuebas, "as of a date prior to the death of Felipe Cuebas, so as to avoid the necessity for reviving as against his succession," etc. This the court denied, and dismissed the bill.
From this decree an appeal has been prosecuted.