Dickinson v. Mulligan

• Citation: 173 F.2d 738
• Parties: DICKINSON v. MULLIGAN et al.
• Decision Date: 31 March 1949
• Court: U.S. Court of Appeals — Second Circuit

173 F.2d 738 (1949)

DICKINSON v. MULLIGAN et al.

United States Court of Appeals Second Circuit.

March 31, 1949.

Solomon Kaufman, of New York City, for appellant Dickinson.

James A. Vaughan, of New York City, for appellees E. Lewis Burnham and others, for the motion.

Alexander Kahan, of New York City, opposed.

Before L. HAND, SWAN and FRANK, Circuit Judges.

L. HAND, Chief Judge.

The appellant, Dickinson, and the appellees, Burnham and others, constituting the "Rinke Agency Subscribers," move to dismiss the appeal of the Petroleum Conversion Corporation from a judgment of the district court entered August third, 1948. The chief question is whether the corporation could have appealed from an earlier judgment, entered on April tenth, 1947, which dismissed a counterclaim filed by it after it had been allowed to intervene in the action; or whether it could appeal only from the judgment of 1948. Other questions, relating to the formal regularity of the appeal and to an extension of the time within which to file the record and brief, we reserve for the moment. Some outline of the action and what has gone before is necessary to an understanding of the motion. Dickinson sued Lloyd and others to impress a lien upon certain shares of the Petroleum Conversion Corporation, not then a party to the action; the district judge dismissed the complaint, and we reversed the judgment on January nineteenth, 1943.¹ Our opinion sufficiently states the controversy as it was at that time. On December third, 1943, the Petroleum Conversion Corporation was allowed to intervene by consent, and it filed a counterclaim in which it demanded the cancellation of a large number of its shares, on the ground that they had been fraudulently issued, and the recovery of $87,310.28 from Dickinson and Lloyd, alleged to have been unlawful profits, obtained while acting as fiduciaries. On the same day Burnham and Vaughan were also allowed to intervene upon behalf of themselves and all other subscribers to a fund, known as the "Rinke Agency Subscribers," and to file a counterclaim demanding recovery from Dickinson and Lloyd of the same amount as the Petroleum Conversion Corporation claimed in its counterclaim.

The cause was tried a second time in 1944 and 1945, and, after long delay, an interlocutory judgment was finally entered on April tenth, 1947, as follows:

(1) Dismissing the complaint of Dickinson in toto;

(2) Declaring that the Petroleum Conversion Corporation had no right to 244,041 shares of its stock, then in possession of the court, and directing it to issue new certificates for those shares to the shareholders of another corporation, but that any shares not so distributed should be transferred to others as might be later decreed;

(3) Declaring that of 20,796 shares of its stock in possession of Lloyd's administrator, 8,200 should be delivered to the Petroleum Conversion Corporation, but that its claim to the remaining 12,596 shares be dismissed;

(4) Dismissing its claim for a rescission of a contract between itself and the plaintiff and his son;

(5) Dismissing its claim against Dickinson and Lloyd for the sum of $87,310.28 (6) Dismissing the claims of Lloyd's administrator altogether;

(7) Granting recovery of $174,620.56 with interest against Dickinson and Lloyd's administrator in favor of the "Rinke Agency Subscribers," and providing a concourse of all these, by which their several claims could be liquidated and the amounts ascertained to which each was entitled out of the sum mentioned.

On August third, 1948, after appropriate hearings, the district court entered a final judgment, fixing the several claims of all the "Rinke Agency Subscribers" who had proved their claims, and barring the claims of those who had not. Thus, it appears that the judgment of April tenth, 1947, finally disposed of the counterclaim of the Petroleum Conversion Corporation, as well as of any claim against that corporation by any of the parties; there remained, so far as that corporation was concerned, only the issue of those of its shares to others which the judgment directed — merely ministerial acts on any theory. That judgment was not final, however, as to the "Rinke Agency Subscribers," and became so only by the judgment entered on August third, 1948.

Had the petition of the Petroleum Conversion Corporation to intervene been denied, the denial would have been appealable, because in that event the petitioner would not have been "at liberty to assert and protect" its interests "in some more appropriate proceeding."² If so, it is not easy to understand why a party who has been allowed to intervene, should not be allowed an immediate appeal from a judgment dismissing his claim after a trial. The petition of intervention must within its own four corners disclose the basis of the claim, and the merits so disclosed will determine the right to intervene; there would appear to be no more reason to accelerate the right to appeal when the facts which it alleges, if true, do not justify the claim in law, than when, though the allegations are enough, they turn out to be false. On the other hand it is true that the whole nexus, or nidus, of facts out of which all the disputes and claims arose were not disposed of by the judgment of April tenth, 1947. True, that decree did decide that Dickinson and Lloyd owed the "Rinke Agency Subscribers" about $175,000 and that was a definitive decision; but it did not decide who was to participate in that limited award. That required another complicated proceeding in which over seventy claims were tried out and liquidated, and at the end of which all claimants were barred who had not appeared. That was in no sense a ministerial implementation of the judgment of April tenth, 1947.

In the view of all members of the court, as it is now...