The opinion of the court was delivered by: John E. Miller, District Judge.
This action is before the Court upon separate motions to remand
filed by the plaintiffs, B.F. Willingham and Mildred Willingham,
and by the defendants, W.S. Bradham and Floy Bradham.
In the complaint filed in the Chancery Court of Union County,
Arkansas, the plaintiffs allege that all parties to the action
are residents of the State of Arkansas. Plaintiffs further allege
that on November 29, 1956, they assigned certain interests and
property to the defendant, Creswell-Keith, Inc., Trustee for
Creswell-Keith Mining Trust, and that as a part of the assignment
Creswell-Keith executed a note in the sum of $55,173.36, payable
to W.S. Bradham and B.F. Willingham; that as a part of the
assignment Creswell-Keith also assumed certain obligations of
Willingham and Bradham. Plaintiffs also allege that defendants,
W.S. Bradham and Floy Bradham, should be made parties defendant
since they might claim some interest in the property by reason of
the former partnership between B.F. Willingham and W.S. Bradham,
and by reason of the transfer of certain personal property by
Creswell-Keith to Bradham.
Plaintiffs prayed for an accounting from Creswell-Keith; for a
judgment against Creswell-Keith for the amount due on the
above-mentioned note; for specific performance by Creswell-Keith
of obligations due J.E. McMillan and Mary E. McMillan under the
above-mentioned assignment; that a receiver be appointed, and for
all other proper relief.
Subsequently J.E. McMillan and Mary E. McMillan filed an
intervention alleging that they are residents of Clark County,
Arkansas; that by reason of the assignment of November 29, 1956,
by B.F. Willingham and W.S. Bradham to Creswell-Keith, Inc., that
Creswell-Keith is now indebted to the intervenors in the sum of
Plaintiffs, B.F. and Mildred Willingham, filed an answer to the
intervention of the McMillans, admitting the allegations of said
intervention, but alleging that Creswell-Keith is primarily
liable to the McMillans and that the Willinghams are only
An intervention was also filed by W.S. Anderson, a citizen and
resident of the State of Mississippi. Anderson seeks judgment
against the plaintiffs, B.F. and Mildred Willingham, and against
the defendants, Creswell-Keith, Inc., W.S. Bradham and Floy
Bradham, jointly and severally, in the sum of $4,000.
The Willinghams filed an answer to the intervention of Anderson
alleging that the assignment relied upon by Anderson was actually
between Anderson and Creswell-Keith, and that the Willinghams had
no responsibility in any manner for said assignment.
"1. This cause of action was filed in the Union
Chancery Court on the 30th day of December, 1957,
being docketed as Case No. 13,461. Service was had on
the Defendants on the 18th day of January, 1958. The
time within which the Defendants may Petition for
Removal of the Cause has not expired.
"2. This suit is one of a civil nature in which the
District Court of the United States has original
jurisdiction. It appears by the Complaint that
Plaintiffs seek recovery under a certain assignment
referred to in the Complaint as Exhibit A. That
assignment is the subject of action filed prior to
the filing of Union Chancery Case No. 13,461 as Civil
Action No. 731 in this, the United States District
Court, Western District of Arkansas, Hot Springs
Division. Civil Action No. 731 is styled
Creswell-Keith, Inc., an Arkansas Corporation,
Trustee for Creswell-Keith Mining Trust, v. B.F.
Willingham, W.S. (Pete) Bradham, Mildred Willingham
and Floy Bradham.
"3. This court has original jurisdiction of the
cause under Section 22(a) of the Securities Act of
1933, 48 Stat. 86, as amended 15 U.S.C. § 77(v)
"4. Defendants, Creswell-Keith, Inc., and
Creswell-Keith Trustee for Creswell-Keith Mining
Trust are an Arkansas Corporation. Intervenor, W.S.
Anderson is a resident of Mississippi asking Judgment
in the sum of $4000.00. The Intervenors action is
between Citizens of different states for an amount
exceeding the sum or value of $3000.00, exclusive of
interest or costs.
"6. The separate Defendants, Creswell-Keith, Inc.,
and Creswell-Keith Trustee for Creswell-Keith Mining
Trust are entitled to have the entire cause removed
to the United States District Court for the Western
District of Arkansas, Hot Springs Division. * * *"
On February 11, 1958, plaintiffs, B.F. and Mildred Willingham,
filed a motion to remand the case to the state court, and on
February 13, 1958, said plaintiffs filed an additional ...