#### WAGNER et al. v. KEMPER et al.

No. 7617.

United States District Court W. D. Missouri, W. D.

Sept. 24, 1952.

*129Cobbs, Blake, Armstrong, Teasdale & Roos, of St. Louis, Mo., Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for plaintiffs.

Arthur G. Heyne, Richard O. Roberts, G. A. Buder, Jr. of St. Louis, Mo., Frank C. Rayburn, Kansas City, Mo.; for intervenors.

Hugh M. Hiller, Kansas City, Mo., for defendant Commerce Trust Co.

Watson, Ess, Whittaker, Marshall & Eng-gas, Kansas City, Mo., for defendants Trustees, James M. Kemper, Henry N. Ess, Frederich H. Dierks, and Pickering Lumber Co.

REEVES, Chief Judge.

A large number of persons owning or holding Voting Trust Certificates of Pickering Lumber Company have moved to intervene in the above case. The questions involved appear from the issues as made up on the original pleadings, that is to say, the complaint and answers of the defendants. The action is one for a declaratory judgment and other relief involving the abrogation of a Voting Trust Agreement dated April 1, 1937. The plaintiffs in the original suit are owners and holders of voting trust certificates issued pursuant to said agreement. The relief sought is that such voting trust certificates be surrendered and that the original shares of common stock be issued and delivered to the owners of said stock. .

Quite clearly the original action is brought pursuant to the provisions of rule 23(a) (3), Fed.Rules Civ.Proc. 28 U.S. C.A. For the purposes of this opinion, such rule provides that:

> “(a) If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue * * * when the character of the right sought to be enforced for * * * the class is * * * (3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”

This particular paragraph provides for class actions commonly known as “spurious” in contradistinction to “true” class actions. Although denominated a “spurious” class action nevertheless it is one authorized by law. However, an action of this kind, as has been repeatedly held by the courts, is “but a congeries of separate suits so that each claimant must, as to his own claim, meet the jurisdictional requirements.”

Such was the holding in Steele v. Guaranty Trust Co. of New York, 2 Cir., 164 F.2d 387, loc.cit. 388. An identical ruling was made by the Court of Appeals for the District of Columbia, in Knowles v. War Damage Corporation, 83 U.S.App.D.C. *130388, 171 F.2d 15, loc.cit. 18. Judge Prettyman of that court said:

> “This type of action is spoken of as a ‘spurious class action.’ The members’ interests may be several and not interdependent, although the remaining requisites of the true class action must be met. Their joinder is a matter of economy and efficiency on the part of courts and parties—an avoidance of a multiplicity of suits. Courts have possessed the power to afford and have afforded this remedy long before the adoption of the new Federal Rules of Civil Procedure. *The joinder was and is a matter of discretion in the trial court.*However, both at the earlier date and now, when the interests are separate but a joinder is permitted, each individual claim must equal or exceed $3,000 before the action can be prosecuted in a federal court. When the claims are separate, they cannot be aggregated to surpass this jurisdictional threshold.” (Emphasis mine.)

It would follow from these and other decisions that the intervenors must be qualified, both by reason of a diversity of citizenship and by reason of the requisite amount in controversy. It does not appear from the motion or from the intervening petition that the intervenors meet these requirements. The intervention, therefore, should be denied.

 Moreover, rule 24, Federal Rules of Civil Procedure, provides interventions of this class are only permissive and not mandatory upon the court. In this action, if it should be determined that the voting trust agreement should be annulled or abrogated, then clearly the trustees would have but one duty and that would be to dissolve the trust as to all certificate holders without regard to their presence. Under such circumstances it is the duty of the court to deny the intervention, and it will be so ordered.