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WILLINGHAM v. CRESWELL-KEITH

March 31, 1958

B.F. WILLINGHAM AND MILDRED WILLINGHAM, PLAINTIFFS,
v.
CRESWELL-KEITH, INC., AND CRESWELL-KEITH, TRUSTEE FOR CRESWELL-KEITH MINING TRUST, AND W.S. BRADHAM AND FLOY BRADHAM, DEFENDANTS. W.S. ANDERSON, J.E. MCMILLAN AND MARY MCMILLAN, INTERVENORS.



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 $6,000.

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 secondarily liable.

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.

After all the above-mentioned pleadings had been filed in the Chancery Court of Union County, Arkansas, the defendants, Creswell-Keith, Inc., and Creswell-Keith, Trustee for Creswell-Keith Mining Trust, on February 5, 1958, filed their petition for removal in this Court. In the petition the said defendants make the following allegations:

    "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)
  (a) 8.
    "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. * * *"
  (Emphasis added.)

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 ...


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