Sterling Tire Corp. v. Sullivan

279 F. 336 | 9th Cir. | 1922

HUNT, Circuit Judge

(after stating the facts as above). ) [1] In the light of tbe final decision of the state court that the copartnership alleged never existed and that the tires never were the property of either of the parties to the action of Gerlinger v. Hickok, there would seem to be an injustice in assessing the expenses of the receivership against the property of the New Jersey corporation, plaintiff in error in the present action. But, on the other hand, jurisdiction of the state court in the action referred to being perfectly clear, the federal courts will not assume to pass upon the merits of the order appointing the receiver or fixing his compensation.

[2] In our opinion the facts show that plaintiff in error recognized the order appointing a receiver and sought the protection of its rights when, upon motiofi to discharge the receiver, counsel appeared in its behalf, read his authority to act and moved the state court to order a bond to indemnify his client, and obtained a favorable ruling sustaining his motion. Counsel did not then ask for entry limiting his appearance, and having obtained what he asked for in the way of an indemnity to his client, is not now in a position to contend that he made a special appearance. Moreover, for all that appears in the record, the plaintiff in error may yet maintain action on the bond in its favor which the receiver gave to indemnify.

[3] Nor do we believe that, when associate counsel for the New Jersey corporation appeared in the later proceeding-, the motion of the receiver for instruction and for compensation, counsel’s statement that he appea'red “specially” can be held to have been a special appearance. Like the action that had been taken previously by first counsel who appeared, the second appearance was in no way limited-do objection to the jurisdiction. In both instances counsel recognized the case in court and actively participated therein. In the one, the bond was* prayed for; in the other, counsel sought a continuance of any action in order to learn the facts and wishes of his New Jersey client. The court evidently considered his suggestions, and counsel signed and approved the order of the court concerning a contingent voluntary appearance by the New Jersey corporation within a certain time and the disnosition by the receiver of the property in the receiver’s possession. 2 R. C. L. 327; 3 Cyc. 504; 4 C. J. 1333; Hupfeld v. Piano Co. (C. C.) 66 Fed. 788; Ex parte Clark, 125 Cal. 389, 58 Pac. 22; Zobel v. Zoble, 151 Cal. 98, 90 Pac. 191; State ex rel. Mackey v. Court, 40 Mont. 359, 106 Pac. 1098, 135 Am. St. Rep. 622.

We find the judgment in favor of plaintiff in error, subject to the lien, as given by the state court is correct.

Affirmed.