Page:Federal Reporter, 1st Series, Volume 7.djvu/448

 436 PBDBBaL REPORTER. �and erected a building partly upon plaintifff's property. Said association thereafter leased said building to the Flints and Coans, (parties defendant.) Suit for the dissolution of said association was instituted October 13, 1879, in the proper state court, which ripened into a final decree on November 10, 1879, whereby the title to all of the property of said asso- ciation vested absolutely in Eelfe, the state superintendant. Thereupon the said Flints and Coans attorned to said Eelfe. �The plaintiff in this action made the defendants in posses- sion and said Eelfe the defendants to the suit. A motJon ■was subsequently made to dismisa as to said Eelfe, which was resisted by him. The court overruled the motion, on the ground that as the landlord might, under the Missouri stat- utes, make himself a party, and that, as the plaintiff had chosen to bring him in, it would be idle to dismiss asto him, and then have hiru take leave to appear instanter. Now, said landlord being defendant of record, appears specially and moves to dismiss the suit on the ground that the premises in dispute are in custodia legis qi M& state oouxi through his tenants and himself, as a state officer, in whom there has been vested by operation of law jihe title, whatever it may' have been, of said dissolved association, The motion is supposed to rest on the doctrine stated in Taylor v. Cœrryl, 20 How. 584 Freeman v. Howe, 24 How. 450; Bucky. Colbath, 3 Wall. 334 Thompson v. Scott, 4 Dill. 504; Conkling v. Butler, i Biss. 22 Wiswall Y. Sampson, 14 How. 52; Beale v. Phipps, 14 How. 368, and other cases cited. �The present suit was brought in this court after said Eelfe had become vested by decree of the state court with the title of the Life Association, and after the attornment to him by the tenants in possession. �The technical question exista as to the modeof proceeding, viz. : Can a motion to dismiss raise the question desired to be presented? If there appears on the face of the record that the court has no jurisdiction, a motion to dismiss would be proper. But other f acts have to appear in this case to raise the jurisdictional question, — such as the proceedings in the state court, etc., — which facts are stated at length in the motion and supplemented by the state record, etc. Henoe, the ques- ��� �