sought to be realigned were, on some issues, seeking identical relief.
Dilatush v. Highfill, 8 Cir., 140 F.2d 741, certiorari denied 322 U.S. 741, 742, 64 S. Ct. 1145, 88 L. Ed. 1575, held that there was a collision of interest which barred the r-alignment of parties so as to defeat jurisdiction and the facts of that case are inapplicable to the instant situation.
In Texas Pacific Coal & Oil Co. v. Mayfield, supra, one of the defendants filed an answer and counterclaim adopting parts of the plaintiff's complaint in an action to quiet title. The district court realigned this defendant with the plaintiff and dismissed the action for lack of jurisdiction. The circuit court of appeals reversed holding that this defendant's claim was antagonistic to the plaintiff and that the facts forming the basis for realignment must exist at the time of the filing of the original suit. Here the basis for realignment existed from the commencement of the action and the counterclaim and cross-claim raised no contrary issue.
In Maljamar Oil & Gas Corporation v. Malco Corporation, supra, a trilateral contract was involved. Although the two parties sought to be aligned joined in seeking to maintain the validity of the contract in question, each party to the contract asserted separate and distinct rights and liabilities against the other thereby preventing any community of interests in the rights each claimed in the contract and gave rise to a controversy preventing realignment.
Thomas v. Thomas, supra, merely reiterates the rule as to realignment and held that a district court action should not have been dismissed until after the controlling issues in the case had been determined. Realignment was premature since parties had not come to issue. 'We hold that the realignment cannot take place until it has been made to appear that there is no substantial controversy between the plaintiff and the defendant proposed for realignment or that their rights are so identical as to necessitate their being placed on the same side. 165 F.2d at page 334.
None of the cases cited by the plaintiff add or detract from the law as set forth in the Indianapolis case but only serve to strengthen the conclusion that the parties herein must be realigned in accordance with their community of interests.
In the Indianapolis case the Supreme Court turned to the Actualities of this litigation'. In its search for them it found:
'The facts leave no room for doubt that on the merits only one question permeates this litigation: Is the lease whereby Indianapolis Gas in 1913 conveyed all its gas plant property to Citizens Gas valid and binding upon the City? This is the 'primary and controlling matter in dispute'. The rest is window-dressing designed to satisfy the requirements of diversity jurisdiction. Everything else in the case is incidental to this dominating controversy, with respect to which Indianapolis Gas and the City, 'citizens' of the same state, are on opposite sides. That the case presents 'only one fundamental issue' and that that is the obligation of the City under the lease, Chase admits and indeed insists upon in its brief on the merits. Chase and Indianapolis Gas have always been united on this issue: both have always contended for the validity of the lease and the City's obligation under it.
'Plainly, therefore, Chase and Indianapolis Gas are, colloquially speaking, partners in litigation. * * * What Chase wants Indianapolis Gas wants, and the City does not want. Yet, the City and Indianapolis Gas were made to have a common interest against Chase when, as a matter of fact, the interests of the City and Indianapolis Gas are opposed to one another. Therefore, if regard be had to the requirements of jurisdictional integrity, Indianapolis Gas and Chase are on the same side of the controversy not only for their own purposes but also for purposes of diversity jurisdiction. But such realignment places Indiana 'citizens' on both sides of the litigation and precludes assumption of jurisdiction based upon diversity of citizenship. We are thus compelled to the conclusion that the District Court was without jurisdiction. * * * ' 314 U.S.at pages 72-73, 74-75, 62 S. Ct.at pages 17, 18, 86 L. Ed. 47.
The command of that case is applicable to the instant situation.
Adapting the very language of the Supreme Court in the Indianapolis case to the present case it is found that one question permeates this litigation. Are the bonds of the Bridge Commission and its resolution pursuant to which they were issued valid? This is the primary and controlling matter in dispute. Everything else in the case is incidental to the dominating question with respect to which the Bridge Commission and Haines and Lippincott citizens of the same state are on opposite sides. The plaintiff and the Bridge Commission are united on this issue. Both contend for the validity of the resolution and the bonds. Plainly therefore the plaintiff and the Bridge Commission are, colloquially sepaking, partners in the litigation. What the plaintiff wants the Bridge Commission wants and Haines and Lippincott do not want. Yet the Bridge Commission and Haines and Lippincott were made to have a common interest when as a matter of fact the interests of the Bridge Commission and the defendants Haines and Lippincott are opposed to one another. Therefore if regard be had to jurisdictional integrity the plaintiff and the Bridge Commission are on the same side of the controversy not only for their own purpose but also for purposes of diversity jurisdiction. But such realignment places New Jersey 'citizens' on both sides of the litigation and precludes assumption of jurisdiction based upon diversity of citizenship. Cf. 314 U.S. 72-73, 74, 62 S. Ct.at pages 18, 19, 86 L. Ed. 47.
The realization by the plaintiff of the benefits claimed by it as its due on the bonds of the Bridge Commission the validation of which is prayed for in this suit is barred only by the intervention of the injunction pendente lite obtained by the defendants, Haines and Lippincott, in the state court. Their action stands in the way of a willing fulfillment by the Bridge Commission of its alleged obligations to the plaintiff and presents in their questioning of the validity of the resolution and bonds the real and substantial controversy. Though not of particular significance it cannot go without observation that the interests of the plaintiff and the Bridge Commission are so intertwined that the latter has relied practically entirely on the arguments of the plaintiff.
No other course is left than to align the Bridge Commission and the plaintiff on one side of the controversy in this suit and the defendants Haines and Lippincott on the other side. Thus there appear two plaintiffs, one of which is a citizen of this state, and defendants likewise citizens of this state. The essential diversity of citizenship of the parties disappears and the jurisdiction of this court over the suit is dissolved.
The final argument made by the plaintiff was that since Haines and Lippincott are not necessary parties and the relief sought against them was merely incidental to a declaration of the validity of the resolution and bonds, diversity of citizenship is required between indispensable parties only and the diversity jurisdiction of this court is sustained as between the plaintiff and the Bridge Commission. This argument cannot prevail because the admissions of the Bridge Commission of the allegations of the plaintiff are such as to leave no justiciable controversy between these parties confronting the court and the complaint of the plaintiff and the answer of the Bridge Commission amount to nothing more than a joint application to the court for an advisory opinion as to the validity of the bonds and the resolution under which they were issued. Cf. Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826.
An order should be taken dismissing the complaint in this action for lack of jurisdiction in conformity with this opinion.