# Barney v. Baltimore City

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## Dissenting Opinion

    Clifford
United States Supreme Court
73 U.S. 280
Barney v. Baltimore City
APPEAL from the Circuit Court for Maryland.
The Judiciary Act gives jurisdiction to the Circuit Court in controversies 'between citizens of different States;' the District of Columbia, as it has been held, not coming within this term.
Another act-one of February 28th, 1839-enacts thus:
That where, in any suit at law or in equity, commenced in any court of the United States, there shall be several defendants, any one or more of whom shall not be inhabitants of or found within the district where the suit is brought or shall not voluntarily appear thereto, it shall be lawful for the court to entertain jurisdiction, and proceed to the trial and adjudication of suc suit between the parties who may be properly before it. But the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process, or not voluntarily appearing to answer; and the non-joinder of parties who are not so inhabitants, or found within the district, shall constitute no manner of abatement or other objection to said suit.
In this state of statutory law, Mary Barney, a citizen of Delaware, and one of the heirs of Samuel Chase, filed a bill in the Circuit Court of the United States for Maryland against the City of Baltimore and several individuals, coheirs with her, certain of them being citizens of Maryland, and certain others (William, Matilda, and Ann Ridgely), citizens of the District of Columbia, to have a partition of real estate of which it was alleged that the said Chase died intestate: and to have also an account of rents and profits, with other incidental relief.
In the progress of the suit, the bill was dismissed as to the three Ridgelys, citizens of the District, and an amended bill filed, stating that they had conveyed their interest in the property in controversy to one Samuel Chase Ridgely (also a defendant in the case), and who was a citizen of Maryland; it being admitted by writing filed that this conveyance was made for the purpose of conferring jurisdiction of the case on the Federal court, that it was without consideration, and that the grantee would, on request of the grantors, reconvey, to them. This Samuel Chase Ridgely made his will soon after the conveyance, devising the property to his three grantors, the District Ridgelys, and having died during the pendency of the suit, it went back to them. They then conveyed to one Proud in the same way as they had previously conveyed to their co-defendant, S.C.. Ridgely, it being admitted that the conveyance was executed to remove a difficulty in the way of the exercise of the jurisdiction of the Circuit Court.
The Circuit Court dismissed the bill by a decree which on its face appeared to be a dismissal on the merits. This appeal was then taken.
Coming here, the case was elaborately argued on the merits. But a point of jurisdiction was raised and discussed previously. On this latter point the case was disposed of by this court; the question of merits not being reached.
On the point of jurisdiction, Messrs. W. Schley and W. H. Norris, for the City of Baltimore, appellees, contended that the appeal ought to be dismissed. Confessedly, citizens of the District could not be made parties to a suit in a Circuit Court of a State. Yet the three parties who here were such citizens, co-heirs with the complainant, were material parties to any bill for account or bill for partition. No complete decree could be made in their absence. The difficulty was sought to be remedied by the conveyances to S.C.. Ridgely and Proud; but the grants not being real grants, could not aid the case.
Messrs. Brent and Williams, contra:
Mary Barney, as one of the co-heirs of her father, has a right to sue for her individual though undividued interest. A decree for a division merely fixes the territorial right of each tenant. A decree as between the present parties would work no prejudice to those absent, nor to those over whom the court has no jurisdiction. They could be subject to no other inconvenience than of a second suit in another tribunal, which is no reason to refuse to decree in this case; the established doctrine being that the Circuit Court will not be ousted of its jurisdiction by the absence of a substantial party over whom it can exercise no power, if the interest be separable from those before it. An estate in common is in its nature separable. As to the account for rents and profits, that, as an incident, would follow the wake of the land.
But if this b otherwise, still Samuel Chase Ridgely, a citizen of Maryland, had become seized of all the estate of the three District Ridgelys, and during his life all the parties and all the interests were properly before the court. The court having jurisdiction of all the parties, so far as their character in regard to citizenship was concerned, will not lose it because of a subsequent change of residence. The devisees of S.C.. R. stand therefore in his shoes, although residents of the District. In addition, the District Ridgelys having, since the death of S.C.. R., conveyed to Proud, a citizen of Maryland, a party to these proceedings-the only parties now are a citizen of Delaware, complainant, with all the defendants, citizens of Maryland. Plainly the jurisdiction exists.
Finally, the act of 28th February, 1839, places the matter beyond doubt.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* ↑ 5 Stat. at Large, 321.
* ↑ Russell v. Clark's Executors, 7 Cranch, 98; Shields v. Barrow, 17 Howard, 139; Smith v. Kernochen, 7 Id. 216.
* ↑ Morgan v. Morgan, 2 Wheaton, 290.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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