Hale v. Tyler

• Decision Date: 25 July 1900
• Docket Number: 877.
• Citation: 104 F. 757
• Parties: HALE v. TYLER.
• Court: U.S. District Court — District of Massachusetts

104 F. 757

HALE v. TYLER.

No. 877.

United States Circuit Court, D. Massachusetts.

July 25, 1900

At Law. On demurrer to declaration.

Judgment 818(4)

John C Coombs and M. H. Boutelle, for plaintiff.

H. W Chaplin and Charles Warner, for defendant.

PUTNAM Circuit Judge.

The underlying subject-matter of this suit is the same as that determined by the circuit court of appeals for this circuit in Hale v. Hardon, 37 C.C.A. 240, 95 F. 747, in which the opinion was passed down on May 31, 1899, reversing the judgment of the circuit court of this district, whose opinion was passed down on September 13, 1898, and is reported in 89 F. 283. The present case comes before the court on demurrer, containing, under the Massachusetts practice, 50 different assignments of alleged defects in the plaintiff's pleadings.

On examining the various assignments, we find that the majority of them must be assumed to have been stated for the purpose of inducing a reconsideration by the appellate tribunals because, with reference thereto, we find ourselves concluded by the adjudication of the circuit court of appeals in the case already referred to. This is directly the fact with reference to assignments 1, 3, 4, 5, 7, 8, 9, 10, 11, and 16, and also, probably, with reference to some other assignments which have not been particularly brought to our attention in the argument at bar. It is also indirectly the fact with reference to assignments, 2, 17, 18, 19, 20, 21, 23, 24, 25, 26, 31, and 38, as all these relate to matters which are covered by the judicial proceedings in Minnesota, which were held, in the opinion of the circuit court of appeals referred to, to be conclusive, in the absence of fraud, as against both resident and nonresident stockholders. Assignments like No. 15 are ineffectual, in view of the fact that, with reference to judgments in superior courts of judicature, like that in Minnesota on which the present cause is based, it is not necessary to show that service was made on residents; but such judgments are presumed to be valid. Assignments like No. 39, which relate purely to matters of form, and do not put their fingers directly on the defects objected to, are clearly insufficient under all systems of pleading, whether at common law or under the statutes of Massachusetts. With reference to assignment 13, the plaintiff has set out fully the judicial proceedings in Minnesota; and, the circuit court of appeals having determined in Hale v. Hardon that those proceedings are the basis of this class of suits, and it not being necessary to burden pleadings with allegations of matters of law, the plaintiff, in that particular, has clearly made it appear on what he rests his right of action.

In view of what we have said about No. 13, it is apparent that the matters referred to in Nos. 27, 28, and 29 do not create any duplicity or repugnancy according to the test which the law applies, because they all concern mere matters of surplusage of such a character that they are not grounds for demurrer. If the defendant will, by a proper motion, point out any matters of surplusage which may embarrass her defense, and will support the same by a careful brief, sufficient to enable the court to perceive easily and clearly the justice of her objections, we will consider the propriety of requiring the plaintiff to strike out the parts objected to. The court, however, suggests that, perhaps, on careful consideration, the most important portions of this apparent surplusage will be found to be mere matter of inducement, which, according to the customary rules of pleading, may be justified. The assignments to which we have not referred have not been pressed on us in argument.

As we have said, the most important points relied on by the defendant are necessarily overruled on the strength of the decision of the circuit court of appeals in Hale v. Hardon. We have, however, found it proper to consider whether the opinion of the supreme judicial court of Massachusetts in Hayward v. Leeson, passed down on June 15, 1900, and reported in 57 N.E. 656, has so far changed the status as to require us to hold that the decision of the circuit court of appeals is no longer applicable. We are clear, however, that there is nothing in Hayward v. Leeson which will justify us in sustaining the demurrer. That suit, as it appears, was brought in Massachusetts by Hayward, who had been appointed a receiver, by some court in Tennessee, of the East Tennessee Land Company, an insolvent corporation. He was authorized by his appointment to collect, take possession of, preserve, and care for the assets of the corporation, and to dispose of the same under the order of the court. He was also directed to prosecute suits in the courts of Massachusetts of the class to which Hayward v. Leeson belongs, for the purpose of recovering from the promoters of the corporation assets which it was claimed they had unlawfully withdrawn. He was directed to proceed in those suits either in his own name as receiver or in the name of the East Tennessee Land Company, or jointly in his name as receiver and in the name of the East Tennessee Land Company, as he might be advised by counsel, and in accordance with the rules of practice in the Massachusetts courts. The supreme judicial court of Massachusetts held that none of the proceedings in Tennessee operated as an assignment to the receiver of the choses in action in litigation in Massachusetts, and it quoted the language of Mr. Justice Gray in Union Bank of Chicago v. Kansas City Bank, 136 U.S. 223, 236, 10 Sup.Ct. 1013, 34 L.Ed. 341, that the utmost effect of the appointment of a receiver is to put the property into his custody as officer of the court, but not to change...