Norrie v. Lohman

• Citation: 16 F.2d 355
• Decision Date: 24 December 1926
• Docket Number: No. 29.,29.
• Parties: NORRIE et al. v. LOHMAN, Public Adm'r.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

16 F.2d 355 (1926)

NORRIE et al. v. LOHMAN, Public Adm'r.

No. 29.

Circuit Court of Appeals, Second Circuit.

December 24, 1926.

Sidney Rosenbaum, of New York City (D. W. Peters, of Jefferson City, Mo., and Paul Barnett, of Sedalia, Mo., of counsel), for appellant.

Murray, Ingersoll, Hoge & Humphrey, of New York City (Frederick J. Moses, of New York City, of counsel), for appellees.

Samuel W. Moore, of New York City, and Frank H. Moore and A. F. Smith, both of Kansas City, Mo., for Kansas City Southern Ry. Co., amici curiæ.

Before HOUGH, MANTON, and MACK, Circuit Judges.

MACK, Circuit Judge.

The bill of complaint filed January 14, 1924, alleges that plaintiffs, as New York executors of the estate of Warren C. Beach, deceased, who had been domiciled and resident in New York, took possession in New York of the stock certificates of the Kansas City Southern Railway Company, a Missouri corporation, registered in Beach's name and found in his deposit box in New York City; that the railway company had for years maintained an office in New York City for stock transfers, directors' meetings, and other corporate business there transacted; that inheritance taxes in Missouri and New York had been paid on the stock, and the certificates tendered to the railway company at the New York office for transfer into the name of plaintiffs as executors; that such transfer was refused because of the adverse claims hereinafter recited. The bill further alleges the appointment of Lohman, the public administrator of Cole county, Mo., as ancillary administrator of the estate of Beach in that county, and of defendant Jacobs, the public administrator of Jackson county, Mo., in that county; that Beach left no assets or debts in Missouri, and the railway company had no assets or office in Cole county; that Lohman, as such administrator, had filed a petition against the railway company in Jackson county, Mo., in September, 1913, alleging the situs of the stock to be there and demanding its transfer to him; that Jacobs, as such administrator, claims the exclusive right of administration and transfer to himself and threatens suit therefor.

The prayer was to quiet title to the shares in the executors, for transfer by the railway company, and injunction against Lohman and Jacobs from further proceedings against the railway company. Substituted service was had on Lohman and Jacobs. The latter was defaulted; the former appeared specially; his motion to dismiss for want of jurisdiction, under section 57 of the Judicial Code (Comp. St. § 1039), was denied on the ground that the situs of shares was within the district, under section 57, on the authority of Vidal v. South American Sec. Co. (C. C. A.) 276 F. 855. Thereafter Lohman, answering, reserving his objections to the jurisdiction, asserted the situs of the stock and consequent exclusive jurisdiction to be in Missouri and alleged the pendency of his Missouri suit, and that the shares of stock, which he alleged constitute the res in this cause, had been theretofore seized by the Missouri court by virtue of the Jackson county, Mo., suit.

He further alleged that, since the institution of the present suit, plaintiffs herein had been made defendants in the Missouri suit and had been duly served therein. Defendant railway company in its answer moved to dismiss for want of jurisdiction and of equity, expressed its willingness to make the transfer, if lawful, and alleged the demands made by Lohman and Jacobs and its declination to transfer solely because of these adverse demands.

The certificate of evidence filed in this cause shows only that, when the case was called for trial, Lohman renewed a motion, made the day before, for leave to file a supplemental answer, setting up new facts which were alleged to bar the action. The tendered supplemental answer alleged that in Lohman's Missouri suit all parties to this suit except Jacobs, who is charged to be an improper party in either suit, were included; that plaintiffs herein by answer prayed that the railway company transfer to them; that thereby the identical issues here presented were there presented and adjudicated by final decree; that by that decree judgment went against Lohman and in favor of the executors, in whom title was decreed, and to whom the railway company was decreed to transfer the stock; that from that decree Lohman appealed, and that appeal is now pending in the Supreme Court of Missouri. The supplemental answer prayed dismissal of the bill, or at least a stay until final judgment in the Supreme Court of Missouri.

The court denied leave to file the supplemental answer, but received in evidence, as the only evidence in the case, a transcript of the Missouri judgment roll. It appears therefrom that plaintiffs herein answered fully therein, averred the pendency of the New York suit before they were made parties to the Missouri suit, and prayed for all the relief sought in the instant case, except as against Jacobs. They, like the railway company, set up as a further defense that Lohman, as public administrator of Cole county, Mo., had in no event any right to administer the stock, because, if it was to be administered in Missouri, its situs therein was in Jackson county, where the railway company maintained its principal place of business, and the decedent had no assets in Cole county Lohman's motion for judgment on the pleadings, on the ground that the answers offered no defense, was overruled, and, as he declined to plead further, judgment went against him. Thereupon he appealed to the Supreme Court of Missouri, where at the time of the trial in the District Court the matter was still pending.

By the final decree now sought to be reviewed on Lohman's appeal, plaintiffs' rights were adjudged to be superior to the claims of Lohman and Jacobs, and the railway company was ordered to make the transfer as prayed for.

Appellant Lohman, on notice to his co-defendants, was granted a severance on appeal, and by the same order was allowed his separate appeal. This order was entered within 90 days after entry of the final decree; by the rules of the District Court, terms are extended 90 days for all purposes in connection with judgments and decrees. The appeal therefore, is to be...