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HILL v. BRANSCUM

September 12, 1962

VANCE ALVIS HILL AND VANCE ALVIS HILL, GUARDIAN OF MARTHA E. HILL, PLAINTIFFS,
v.
BOBBY J. BRANSCUM, JOHN W. HOLLAND, AUBREY L. ANDREWS, AFFILIATED FUND, INC., NATIONAL SECURITIES AND RESEARCH CORPORATION, THE VALUE LINE INCOME FUND, INC., INCORPORATED INCOME FUND, DIVERSIFIED INVESTMENT FUND, INC., AND EDWARD E. BEDWELL, TRUSTEE, DEFENDANTS.



The opinion of the court was delivered by: John E. Miller, Chief Judge.

On July 23, 1962, the plaintiffs commenced this action in the Sebastian Chancery Court, Fort Smith District. Service of process was had upon the corporate defendants on July 25, 1962, by service upon Clint Jones, State Securities Commissioner and agent for service.

On August 10, 1962, the defendants Affiliated Fund, Inc., National Securities and Research Corporation, and Incorporated Income Fund filed separate petitions for removal, and on August 14, 1962, the defendant Diversified Investment Fund, Inc., filed its separate petition for removal.

The defendant Affiliated Fund, Inc., is a corporation organized under the laws of the State of New York with its principal place of business in the City of New York.

The defendant National Securities and Research Corporation is a corporation organized under the laws of the State of New York, with its principal place of business in the City of New York.

The defendant Incorporated Income Fund is a corporation organized under the laws of the State of Massachusetts, with its principal place of business in the City of Boston.

The defendant Diversified Investment Fund, Inc., is a corporation organized under the laws of the State of Delaware, with its principal place of business in the State of New Jersey.

The plaintiffs are all citizens of Arkansas and reside in the Western District. The individual defendants are citizens of and residents of the State of Arkansas. The amount sought to be recovered by the plaintiffs from each of the removing defendants is in excess of $10,000.

As grounds for removal, the defendant Affiliated Fund, Inc., in its petition for removal alleged:

    "* * * that though there are other defendants named
  in said action, insofar as said complaint attempts to
  state a cause of action or a claim against this
  defendant, said claim or cause of action is wholly
  separate and independent of and from the claims of
  the plaintiffs herein with respect to each and all of
  the other defendants; that the substance of the claim
  against this defendant is that the plaintiffs herein
  were the owners of certain certificates of the
  capital stock of Affiliated Fund, Inc.; that said
  stock was purchased by the said Affiliated Fund, Inc.
  upon forged or improper or unauthorized signatures,
  and prays that this defendant be required to re-issue
  the specific stock certificates having a value in
  excess of $22,000, and prays that if said
  certificates are not issued that they have judgment
  for the value thereof, which said value is in excess
  of $22,000; that the claims against the other
  defendants herein are similar in respect to the stock
  certificates of certain other companies in which this
  defendant is in no wise interested; that said
  complaint further seeks to recover against certain
  other defendants on an allegation of fraud, in which
  this defendant is not interested, and against which
  no allegations are made in relation thereto, and that
  therefore the said claim against this defendant is
  wholly separate and independent of and from

  any claim the plaintiffs may have against any other
  defendant herein."

The petition for removal filed by the defendant National Securities and Research Corporation is identical with the above.

In the petition for removal filed by Incorporated Income Fund, it is alleged:

    "The matter in controversy in said action exceeds
  the sum of $10,000, exclusive of interest and costs.
  The claim or cause of action, if any, against
  Incorporated Income Fund set forth in the complaint
  is separate and independent from the claims and
  causes of action asserted against the other
  defendants in the case."

In the petition for removal filed by the defendant Diversified Investment Fund, Inc., as grounds for removal it alleged:

    "That the claim or cause of action asserted by
  plaintiffs against defendant Diversified Investment
  Fund, Inc. is a separate and independent claim or
  cause of action which would be removable if sued upon
  alone."

It will be noted that the defendant The Value Line Income Fund, Inc., did not file petition for removal, and that plaintiffs seek to recover from it only the sum of $4,539.55.

All of the defendants were joined in the complaint filed by plaintiffs in the Sebastian Chancery Court, Fort Smith District, as authorized by Ark.Stat.Ann., Sec. 27-806 (1947), which provides:

    "* * * All persons may be joined in one action as
  defendants if there is asserted against them jointly,
  severally, or in the alternative, any right to relief
  in respect of or arising out of the same transaction,
  occurrence, or series of transactions or occurrences
  and if any question of law or fact common to all of
  them will arise in the action."

However, for some reason each petition for removal was designated in this court as a separate suit, that is to say, the petition for removal filed by defendant Affiliated Fund, Inc., was docketed as Civil 1664; the petition for removal filed by defendant National Securities and Research Corporation was docketed as Civil 1665; the petition for removal filed by Incorporated Income Fund was docketed as Civil 1666; and the petition for removal filed by Diversified Investment Fund, Inc., was docketed as Civil 1667. On August 15, 1962, when the court was advised of such action, it entered an order consolidating Civils Nos. 1665, 1666 and 1667 with Civil No. 1664, but the plaintiffs filed a separate motion to remand in each case, and for grounds alleged:

    "That no separate and independent claim or cause of
  action against the defendant is stated in the
  complaint and that said cause is not removable under
  28 ...

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