100 F. 515 | 8th Cir. | 1900
after stating the case as above, delivered the opinion of the court.
It is claimed in behalf of John A. Woods, the intervener and the appellant, that the service obtained in the action which was brought by John A. Woodson, as receiver, for the purpose of annulling the joint deed of trust that was executed by the Southwestern1 Arkansas & Indian Territory Eailroad Company and the Smithton Lumber Company, was insufficient to support the decree subsequently rendered in that suit, adjudging the deed of trust to be void and of no effect, and that the trial court accordingly erred in holding that the plea interposed by the receiver stated a good defense to the intervening petition. Proceedings to obtain service in the action brought by the receiver to test the validity of the joint deed of trust were taken under section 738 of the Eevised Statutes of the United States, which is as follows:
, “When any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought is not an inhabitant of nor found within the said district, and does not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant’s bill at a certain day, therein to be designated; and the said order shall be served on such.absent defendant, if practicable, whenever*517 found, or, where sucli personal service is not practicable, shall be published in such manner as the court shall direct. If such absent defendant, does not appear, plead, answer, or demur within the timo so limited, or within some further time to be allowed by the court in its discretion, it shall be lawful for the court, upon proof of the service or publication of the said order, and of the performance of the directions contained therein, to entertain jurisdiction, and proceed to the hearing and adjudication of such suil, in the same manner as if such absent defendant had been served with process within the said district. But the said adjudication shall, as regards such absent defendant without appearance, affect his property within such district only.”
Acting under that statute, the court in which the action was brought made the following order on April 14, 1896:
“Now, on this day comes the complainant, and shows to the court that this is a suit brought by him for the purpose of canceling a certain mortgage executed by the Southwestern Arkansas & Indian Territory Railway Company and (he Smithton Lumber Company on the 24th day of October, 1895, conveying all the property of each of said companies of evéry description, said mortgage being given to secure the payment of 200 joint bonds, of $1,000 each; that the defendant Farmers’ Loan & Trust Company of New York is the trustee named in said mortgage, and the defendants O. L. Geer, .Tames C. Hutchinson, and Morritz; Lippman, partners as aforesaid, are the holders of the bonds secured thereby; and that none of said partners are inhabitants of, or found within the limits of, this district, nor have voluntarily appeared thereto. It is therefore ordered that said Farmers’ Loan & Trust Company, O. L. Geer, James C. Hutchinson, and Morritz Lippman be required to appear on or before the first Monday in June, 1890, and plead, answer, or demur to the bill of complaint herein, and that in case of their failure to appear on that day a pro conf'esso may be taken against them for their default. It is also ordered that a copy of this order be served on each of said parties, wherever he may be found, and upon the person in possession of the property of each mortgagor company in suit. Such service shall be made by the United States marshal for the proper district of the United States, and the return of said marshal of such service shall bo deemed sufficient proof of the service of the order.”
To tills order the United States marshal for the Eastern district of Arkansas made the following return:
“I have executed the within order by delivering a true and correct copy of this order into the hands of George E. Cunningham and W. P. Ross, persons in charge of the property referred to herein, at Smithton, in the Eastern district of Arkansas; and this order is returned, without service as to the defendants the Farmers’ Loan & Trust Company of New York, O. L. Geer, James P. Hutchinson, and Morritz Lippman, all of said defendants being nonresidents of, and not found in, the Eastern district of Arkansas, this 30th day of April, 1890.”
.To the same order the United States marshal for the Southern district of New York made the following return, under date of May 80, 1896:
“I hereby certify that on the 21st day of April, 1896, at the city of New York, in my district, I served the within order upon the within-named Farmers’ Loan & Trust Company of New York, by exhibiting to Roswell G. Rolston, president of said company, the within original, and at the same time leaving with him a copy thereof. The within-named O. L. Geer, James G. Hutchinson, and Morritz Lippman not found.”
On the strength of such service a decree pro confesso was taken against the Farmers’ Loan & Trust Company on August 0, 1896; and on October 22, 1897, a final decree was entered granting the relief prayed for in the bill, to wit, the cancellation of the joint
The particular objection made to the service is that the record does not show that the order of April 14, 1896, prescribing a special mode of service, was based either upon an affidavit showing that the defendants to the bill could not be found within the Eastern district of Arkansas, or that such fact was established by a return, "Not found,” made on a subpoena theretofore issued. It will be observed, however, that the statute does not in terms require that the fact that a defendant is not an inhabitant of a district, or cannot be found therein, shall be established in either of the ways last suggested. It is doubtless true that these facts must be proven in some manner to the satisfaction of the court before it is authorized to make the specified order; but wre are aware of no reason why such facts may not as-well be shown by oral testimony as by an affidavit or a return upon a subpoena, since the statute does not. prescribe a particular kind of proof. In the present case the bill of complaint on which the order was obtained did allege that the Farmers’ Loan & Trust Company was "a corporation organized and doing business under the laws of the state of New York, in the city of New York,” and that O. L. Geer and James C. Hutchinson and Morritz Lippman were “citizens of the state of New York, and residing in the city of New York,” so that these facts were established by' affidaA’it since the bill was duly verified. Besides, the order of April 14, 1896, contains a finding by the court "that none of said parties [defendant] are inhabitants of, or found within the limits of, this district, nor have voluntarily appeared hereto.” It is true that, as this order is printed in the record which has been lodged in this court, the word “parties,” as written in the foregoing excerpt, appears to be “partners.” But a stipulation has been filed by counsel showing that a mistake was made in copying from the original record, and that the word “partners,” which is written in italics in the above-quoted copy of the order of April 14, 1899, should be “parties,” and that it is so written in the record made below. Inasmuch, then, as the record contains a finding by the trial court, as the basis of its order, that none of the parties defendant were inhabitants of, or could be found within the limits of, the Eastern district of Arkansas, it must be presumed, in this proceeding, where the decree is assailed collaterally, that the facts essential to the validity of the order of April 14, 1896, were established by sufficient and competent proof. It was within the power of the court by which the order in question was made to determine whether the defendants were inhabitants of, or could be found within, the district; and, having determined that question in the negative, its decree which is based thereon cannot be assailed collaterally. This is especially true in a case where the statute under which the court acted did not require the production of any particular kind of proof .to establish the fact that the defendants could not be found within the district. Voorhees v. Bank, 10 Pet. 449, 9 L. Ed. 490; Des Moines Nav. & R. Co. v. Iowa Homestead Co., 123 U. S. 552, 557, 8 Sup. Ct. 217, 31 L. Ed. 202; Applegate v. Mining Co., 117 U. S. 255,
It is further claimed in behalf of the appellant that the decree against the Farmers’ Loan & Trust Company adjudging the invalidity of the joint deed of trust is not binding upon him, 'because he was not a party to the suit in which the decree was rendered, even if it is binding upon his trustee, the Farmers’ Loan & Trust Company, who was duly served with process. This point, however, must be ruled against the appellant on the strength of the following cases: Beals v. Railroad Co., 133 U. S. 290, 10 Sup. Ct. 314, 33 L. Ed. 608; Kerrison v. Stewart, 93 U. S. 155, 160, 23 L. Ed. 843; Shaw v. Railroad Co., 100 U. S. 605, 611, 25 L. Ed. 757; and Biel iter v. Jerome, 123 U. S. 233. 247, 8 Sup. Ct. 106, 31 L. Ed. 132, — and especially on the strength of the decision in Beals v. Bailroad Co., which is on all fours with the case in hand. In the latter case a bill was hied against the trustee in a deed of trust to cancel the same, but the complainant Beals, who was a bondholder, was not made a party thereto. Nevertheless it was ruled that the bondholders were parties by representation, and that a decree canceling the mortgage was obligatory upon the bondholders as well as upon their trustee. We discover no circumstances in the case at bar which will serve to take the case out of the operation of the rule there declared. The joint deed of trust Avas made to secure 200 bonds, of the par value of $1,000 each, which were doubtless intended for general circulation. It cannot be assumed, therefore, that it was within the contemplation of the parties That all persons who might hold any of the bonds should be made parties to any and every suit which might be brought, affecting the A'alidity of the deed of trust. Indeed, the trustee, under the terms of the deed of trust, was expressly authorized to commence a suit to foreclose the same, and in such a proceeding the grantor in (he deed of trust was clearly' at liberty to challenge its validity, and litigate that question with the trustee. We are of opinion, therefore;, that the deed of trust made the trustee the agent of all the bondholders to defend a suit such as was brought against the trustee for the purpose of having the deed of trust adjudged invalid, that the grantor in the deed of trust Avas under no obligation to make the bondholders parties to such a proceeding, and that a. decree obtained without fraud, and on due service of process upon the trustee, was effectual to conclude the appellant and all other bondholders.
The appellee filed in this case a, motion to dismiss the appeal, bu(, as the decree below appears to be right upon the merits, we have not deemed it essential to consider said motion on its merits. It will accordingly be entered as overruled, and the decree below will be affirmed.
