179 F.2d 789 (7th Cir. 1950), 9660, Hofheimer v. McIntee

Docket Nº:9660.
Citation:179 F.2d 789
Party Name:HOFHEIMER v. McINTEE et al.
Case Date:February 09, 1950
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 789

179 F.2d 789 (7th Cir. 1950)

HOFHEIMER

v.

McINTEE et al.

No. 9660.

United States Court of Appeals, Seventh Circuit.

February 9, 1950

Rehearing Denied March 10, 1950.

Page 790

Charles Ralph Johnston, Chicago, Ill., for appellant.

Aaron Taymor, Chicago, Ill., Claude A. Roth, Harry E. Smoot, Chicago, Ill., Louis M. Mantynband, George L. Siegel, Chicago, Ill., for appellee.

Before KERNER, LINDLEY, and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

On November 29, 1941, Reka Goldberg Hofheimer brought the instant action against defendants, seeking to establish a trust in certain preferred and common stock of the Hump Hair Pin Manufacturing Company and to recover the same from defendants. Defendants' motion to strike the complaint was sustained on May 5, 1942. No amended complaint having been filed, on December 2, 1942, the court dismissed the suit for want of prosecution. Later, in the same month, the court vacated the order of dismissal and allowed plaintiff to file an amended and supplemental complaint.

Plaintiff's counsel having entered the United States military service, on September 25, 1942, appellant, Charles Ralph Johnston, took his place and filed the amended complaint on December 10, 1942. Count 1 alleged that the stock in controversy was held by defendants for plaintiff's benefit and Count 2 sought to enjoin defendants from participating in certain plans for corporate reorganization in the District Court. Plaintiff's motion for a preliminary injunction having been denied, she appealed to this court, where the order was affirmed in Re South State Street Bldg. Corporation (Hofheimer v. Goldberg et al.), 140 F.2d 363. In the meantime defendants had, on January 9, 1943, moved to dismiss the amended and supplemental complaint. No move was ever made to bring this motion on for hearing and the District Court has entered no order with regard to it.

Plaintiff died on January 27, 1945, and no further action of any kind was taken in the pending suit until June 17, 1947, when defendants suggested her death and moved that the cause be dismissed pursuant to Federal Rule of Civil Procedure 25(a), 28 U.S.C.A., inasmuch as no party plaintiff had been substituted within two years after plaintiff's death.

On July 25, 1947, appellant, appearing in his own behalf, before action had been taken on defendants' motion to dismiss, filed a motion that he be substituted or joined or permitted to intervene as party plaintiff and that the suit proceed in his

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name as sole plaintiff or as co-plaintiff, pursuant to Rules 25(c) and 24 of the Federal Rules of Civil Procedure. The motion was accompanied by his affidavit reciting that on September 24, 1941, the deceased plaintiff had entered into a written...

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