However, the vital point with regard to the motions of the third group is that the record fails to indicate that Section 1655 was followed by the plaintiffs in securing service upon the nonresident defendants. In fact, the return shows service by the respective Marshals in the districts where these defendants reside. Such procedure is not authorized. A situation is presented where the situs of the property is within the district but that the four defendants named have not and cannot be served within the State and have not voluntarily appeared. There has been no application to require the absent defendants to appear or plead by a day certain, as set forth in the statute. As this Court sees it, the provisions of Section 1655 are a substitute for venue, but unless followed, there is no venue. Under the present record, the said four nonresident defendants are entitled to have the service made against them set aside as not being the service authorized under Section 1655. This raises the point whether failure to follow the provisions of Section 1655 is a defect which may be corrected. In my opinion it may be. An appropriate order will be entered.
Sylvania, United and the other resident defendants in general raise the proposition that as substantial relief in personam is sought in the complaint, that is the claim for money damages, the claim for accounting, and that a trustee be appointed, etc., and as not all defendants reside in the district, there is no venue as to any defendants and therefore no relief in personam can be granted. This was the proposition posed in Camp v. Gress, 250 U.S. 308, 39 S. Ct. 478, 63 L. Ed. 997. The Supreme Court held there that in an action on contract brought against resident and nonresident defendants, the exemption of the nonresident defendant from suit, under judicial code, then Section 51, (now Section 1391), is personal to him and cannot be availed of by his co-defendants. Thus, corporate and individual defendants who are in this District and are subject to decrees in personam may not, under Camp v. Gress, take advantage of the fact that not all of the relief prayed for in the complaint can be afforded against all the defendants. The title to the gas in this case can be tried under the rem feature of this lawsuit, if the service is corrected. The problem of the extent of the decree in personam may be held in abeyance until the point is reached where that question must be decided, but in the first instance, the motions to dismiss filed by Group III will be refused.
One remaining matter requires discussion. Defendants raise the sufficiency of the allegations in the complaint. More specifically, defendants say that plaintiffs should be required to attach to the complaint or to incorporate therein an abstract of the title on which they rely. Plaintiffs say the complaint is sufficient under the general rules of pleading, Rule 8 of the Rules of Civil Procedure. As to the subject matter of the suit, the complaint sets forth the plaintiffs, describes the land, and alleges the ownership in Proctor, Sr. in the first instance. In paragraph 6, plaintiffs allege that Warrant 5343 has been assessed for taxes as unseated land and that the taxes have been paid thereon as such from year to year by the several successive owners of the Warrant. The exception and reservation in plaintiffs and their predecessors in title is averred and that by reason thereof ownership and right of possession of the natural gas was retained in Proctor, Sr. and now is in plaintiffs. It is averred that the defendants, or some of them, with knowledge, or by the exercise of reasonable, ordinary and prudent care and diligence, which takes the place of knowledge, as to plaintiffs' title to the natural gas, nevertheless leased, produced, etc. depriving plaintiffs of their property. In an action of ejectment under Pennsylvania state practice, Rule 1054, Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, requires a party to set forth in his pleading an abstract of the title upon which he relies at least from the common source of the adverse titles of the parties. Thus, in the state courts the issue is reached by comparison of the abstracts set up by each of the parties. From the motions and at argument it appears that counsel for the defendants say that the issue here should be reached in the same manner. The argument seems to be that as the gas was severed from the surface in the year 1894, plaintiffs should now be required to set forth in detail an abstract of title. This assumes, of course, that such an abstract would reveal something of interest to the defendants by way of, for instance, a tax sale or some transaction which would prima facie deprive plaintiffs of ownership. However, the federal rules do not require plaintiffs to plead in such a fashion. On the face of the complaint, plaintiffs have shown a title and cause of action. Defendants seek a more definite or detailed statement. However, the complaint as this Court views it, sets forth a short and plain statement of the grounds upon which plaintiffs rest their claim for relief. Plaintiffs set forth the deed under which they claim to rely and the succession by which ownership is passed from Proctor, Sr. to them. They aver that the taxes have been paid. It appears that if there is a weakness or insufficiency in plaintiffs' title, defendants must raise such imperfections by an answer to the complaint. The merits are not reached in this discussion. If, however, it appears from the complaint that plaintiffs' title is founded on the exception of the gas made in 1894, and that there is no other written instrument on which plaintiffs rest their title, then defendants may controvert plaintiffs' title by a short and plain statement in their answer, which fairly meets the substance of the averments of the complaint. Either party may then secure all relevant information as to any conveyances or possible transfers by use of the discovery rules under federal practice.
Appropriate orders will be entered.
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