261 F. 567 | 9th Cir. | 1919
The appellee, in a suit against the appellant and its trustees for the specific performance of a contract, obtained a decree requiring the appellant to transfer to the appellee 260,-000 shares of the appellant’s treasury stock. The appellee moves to dismiss, on the ground that since the decree the appellant has complied therewith and transferred the stock to the appellee, and the latter has sold and disposed of the same to a number of purchasers, who now own the same.
“There can be no question that a debtor against whom a judgment for money is recovered may pay that judgment and bring a writ of error to reverse it, and if reversed can recover back his money, and a defendant in an action' of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of*569 restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal.”
In O’Hara v. McConnell, 93 U. S. 150, 23 L. Ed. 840, it was held that the making of a conveyance as ordered by the decree of the court does not deprive the defendant of the right of appeal. The court said:
“The parties must either have obeyed the order of the court, or taken an appeal, and given a supersedeas bond in a sum so large that they were probably unable to do it.”
In Erwin v. Lowry, 7 How. 172, 184 (12 L. Ed. 655), the court said:
“in no instance within our knowledge has an appeal or writ of error been dismissed on the assumption that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed, it is the duty of the inferior court, on the cause being remanded, to restore the parties to their rights.”
Those cases were followed by this court in Hoogendorn v. Daniel, 202 Fed. 431, 120 C. C. A. 537.
If the decree herein were reversed, and the cause remanded, and the court below were to find in favor of the appellant, that court would not be powerless to afford the appellant substantial relief, notwithstanding that the shares of stock have been transferred to the appellee. The motion is denied.
It is contended that the court below was without jurisdiction of the cause. The appellee brought the suit in the District Court for the Eastern District of Washington, against the appellant and another corporation, each of which had its principal place of business in the Western district of Washington, and made parties defendant certain individuals, citizens of Washington, who resided in the Eastern district. It is admitted that the court below had jurisdiction under section 52 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1101 [Comp. St. § 1034]), unless the suit was one of a local nature within the terms of section 204, Rem. & Ball. Codes of Washington, which makes local "all questions involving the rights to the possession or title to any specific article of personal property.”
The appellant seeks to distinguish the Huseby Case from the case at bar by pointing to the fact that the shares which the plaintiffs there sought to recover were in the possession of Huseby in the county where the action was brought. That fact, however, did not affect the question of the jurisdiction of the court to entertain the cause as against the foreign corporation. The present suit does not involve the right to the possession or the title of any specific article of personal property. It involves only the specific performance of a contract to deliver a certain number of shares of the stock of a corporation. The decree does not act in rem, but in personam. Section 206 of the Washington Code provides that an action against a corporation may be brought in any county where the corporation transacts business, or where it has an office for the transaction of business or any person resides upon whom process may be served against such corporation. Hayworth v. McDonald, 67 Wash. 496, 121 Pac. 984. The president of the appellant resided in the Eastern district of Washington, and in that district the contract here involved was entered into. We think that the court below had jurisdiction of the cause, and we find nothing in Jellenik v. Huron Copper Min. Co., 177 U. S. 1, 20 Sup. Ct. 559, 44 L. Ed. 647, which leads to a different conclusion.
We find no. ground to sustain the contention that the court below erred in finding on the merits in favor of the appellee. The contract was in writing, and was entered into between the appellee and George Francis Rowe, therein represented to be the sales manager and fiscal agent of the appellant, with power to sell 1,000,000 shares of the appellant’s treasury stock. The appellant asserts that the appellant was not informed of this contract until several months after it was executed. But the controlling facts are that on July 17, 1916, the date on which the contract was entered into, the appellant by its president wrote to the Scandinavian-American Bank, informing it that 1,000,000 shares of the appellant’s treasury stock were deposited with it, and that the bank was authorized to issue to the appellee 260,000 shares thereof, and that on July 18, 1916, the appellee, together with all the stockholders of the appellant, entered into a pooling agreement,'in which the appellee was represented as holding 260,000 shares of the appellant’s stock.
The decree is affirmed.