Priest v. Seaman

266 F. 844 | 8th Cir. | 1920

STONE, Circuit Judge.

John W. Seaman filed his bill, as a stockholder, against the United Railways Company, this appellant, as an officer of such company, and various other officers and directors of the company. The purposes of the bill were to recover assets alleged to have been wrongfully diverted by such officers and directors, to escape certain burdensome power contracts fraudulently made by such .officers and directors on the part of the company, to displace such officers and directors, and, incidentally, if necessary to preserve the assets and the street railway system from dismemberment, to have a receiver appointed. Later Samuel W. Adler, a junior bondholder, filed his bill against the company and its predecessor, alleging insolvency and threatened dismemberment of the railway system by holders of defaulted bonds senior to those held by him, and asked a receivership. There were answers and interventions filed, and finally, upon motion of Seaman and certain interveners, the Adler Case was consolidated as an intervention with the Seaman suit. Prior to this last order a receiver had been appointed in the Adler suit. As a part of the above order of intervention and consolidation a receiver was appointed, and the usual injunction issued against interference therewith by officers and directors of the company. From this order appointing a receiver, enjoining corporate action by the officers and directors, and declaring the Adler bill an intervention in the Seaman suit, Priest appeals. The above outline is sufficient for the purposes of this case, but a more detailed statement may be found in the case of Adler v. Seaman (C. C. A.) 266 Fed. 828, decided at this time.

A motion to dismiss this appeal has been filed. The grounds therefor are:

That “the appellant, Henry S. Priest, is only one of a number of defendants in this cause, and all the parties [defendant] interested in the cause and affected by the decree are not joined in this appeal, nor have such other parties [defendant] been notified and requested to join in the appeal, nor has a severance been obtained on their refusal to join in the appeal,” and that “the real party [defendant] in interest in this canse and affected by the order appealed from is the United Railways Company of St. Louis, and this defendant does not join in the appeal, nor has it? been served with notice of the appeal and requested to join in the appeal, nor has a severance been taken as to this defendant.”

The petition for appeal was taken by “Henry S. Priest, one of the defendants in the above-entitled cause, for himself and such other of the defendants as may join herein,” and was signed, “Henry S. Priest, by Boyle & Priest, Solicitors.” There is no claim that any notice to other defendants or any severance for appeal was attempted. It is thus plain that the appeal was by Priest alone. Just before the oral argument of this appeal,, appellant presented a written request upon the part of all the other defendants, except D. R. Francis, Jr., and Annie E. Huttig, heir and trustee under will of Charles H. Huttig, deceased, asking to be permitted to join in this appeal. This was ineffective, for one reason, infer alia, because out of time (2 R. C. L. 66, § 48), and, for another, that it still leaves two defendants, at least one of whom is equally interested and affected by the order with appellant Priest. This leaves the questions raised by the motion where they were.

This appellant has no interest severable from that of other of the defendants. We think the law is clearly as contended by appellees, and that this appeal should be dismissed, because neither the other defendants appealed, nor was a severance for appeal granted to this appellant. Garcia v. Vela, 216 U. S. 598, 601, 30 Sup. Ct. 439, 54 L. Ed. 632; Beardsley v. A. & L. Ry. Co., 158 U. S. 123, 15 Sup. Ct. 786, 39 L. Ed. 919; Hardee v. Wilson, 146 U. S. 179, 13 Sup. Ct. 39, 36 L. Ed. 933; Hampton v. Rouse, 13 Wall. 187, 20 L. Ed. 593; Clifton v. Sheldon, 23 How. 481, 16 L. Ed. 429; Todd v. Daniel, 16 Pet. 521, 523, 524, 10 L. Ed. 1054; Owings v. Kincannon, 7 Pet. 399, 8 L. Ed. 727; Williams v. Bank of U. S., 11 Wheat. 415, 6 L. Ed. 508; 2 R. C. L. 66, Sec. 49; 3 C. J. 1005, 1011, 1012.

The motion to dismiss the appeal is sustained, and the appeal dismissed.