Fahey v. Calverley

• Citation: 208 F.2d 197
• Decision Date: 29 December 1953
• Docket Number: 12893,No. 13411,12575,13558,13055.,13411
• Parties: FAHEY et al. v. CALVERLEY. FEDERAL HOME LOAN BANK OF SAN FRANCISCO v. CALVERLEY. FAHEY et al. v. GILBERT. FEDERAL HOME LOAN BANK OF SAN FRANCISCO v. GILBERT. FAHEY et al. v. WALKER et al. FEDERAL HOME LOAN BANK OF SAN FRANCISCO et al. v. WALKER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

208 F.2d 197 (1953)

FAHEY et al. v. CALVERLEY.

FEDERAL HOME LOAN BANK OF SAN FRANCISCO v. CALVERLEY.

FAHEY et al. v. GILBERT.

FEDERAL HOME LOAN BANK OF SAN FRANCISCO v. GILBERT.

FAHEY et al. v. WALKER et al.

FEDERAL HOME LOAN BANK OF SAN FRANCISCO et al. v. WALKER et al.

Nos. 13411, 13558, 12575, 12893, 13055.

United States Court of Appeals Ninth Circuit.

November 23, 1953.

Rehearing Denied December 29, 1953.

Warren E. Burger, Asst. Atty. General, Edward H. Hickey, Donald B. MacGuineas, Attorneys, Department of Justice, Mose Silverman, Asst. Gen. Counsel, Washington, D. C., for appellants Home Loan Bank Board et al.

Verne Dusenberry, Portland, Or., Philip H. Angell, San Francisco, Cal., Sylvester

Hoffmann, Los Angeles, Cal., Robert M. Adams, Jr., San Francisco, Cal., for appellant Federal Home Loan Bank of San Francisco.

W. I. Gilbert, Jr., Jean Wunderlich, Los Angeles, Cal., for First Federal Savings & Loan Ass'n of Wilmington, Howard V. Calverley, Receiver, and Ernest R. Utley, substituted receiver, and as appellee.

Wyckoff Westover and Westover & Smith, Los Angeles, Cal., for plaintiffs Mallonee et al.

Charles K. Chapman, Long Beach, Cal., for Long Beach Federal Savings & Loan Ass'n and First Federal Savings & Loan Ass'n of Bellflower.

Before STEPHENS, HEALY and BONE, Circuit Judges.

BONE, Circuit Judge.

I

We have before us for disposition two motions of appellants in the above entitled proceedings. By the first of these motions appellants seek an order of this Court remanding the above captioned proceedings No. 13,411 and No. 13,558 to the District Court of the United States for the Southern District of California, Central Division, with directions to:

(1) Vacate the order appointing a receiver, dated, filed and entered on March 15, 1952, in consolidated actions 5421-P. H. and 5678-P.H. in the files of the District Court of the United States for the Southern District of California, Central Division.

(2) Dismiss, or require said receiver to dismiss, the complaint filed by said receiver in the Superior Court of the State of California, in and for the County of Los Angeles, and thereafter removed to said District Court, being action 13953-P.H. in the files of said Court.

(3) Dismiss, or require said receiver to dismiss, the cross-claim filed by said receiver in consolidated actions 5421-P. H. and 5678-P.H.

(4) Vacate the "Order For Interim Allowance Of Costs And Expenses To Defend Appeal From Order Appointing Receiver" filed August 19, 1952 and docketed and entered August 20, 1952 in the above consolidated actions No. 5421-P.H. and No. 5678-P.H. in the files of said District Court.

(5) Direct said receiver and/or his counsel, W. I. Gilbert, Jr., as attorney for said receiver, to return to the Clerk of said District Court the sum of $1605.79 heretofore paid to said W. I. Gilbert, Jr. from funds on deposit in the registry of said Court in action No. 5421-P.H.

The motion for remand of proceedings in said causes No. 13,411 and No. 13,558 in this Court, was made on the ground that the opinions and judgments of this Court heretofore rendered in Appeals Nos. 12,511 and 12,591, and now final, establish and determine that said District Court was and is without jurisdiction of the proceedings in which the said receiver was appointed; that said District Court was therefore without power to appoint a receiver or award costs out of funds on deposit in the registry of the lower Court; that all acts of said purported receiver are therefore void and of no force and effect; and that the issues raised on said appeals have been determined by said opinions.

In the second motion of appellants they move this Court for an order remanding the above captioned "consolidated" proceedings¹ No. 12,575, No. 12,893 and No. 13,055 to the said District Court with directions to vacate each of the orders appealed from in said consolidated causes¹ (which said orders directed the payment of fees to appellee Ronald Walker, as Special Master, from funds on deposit in the registry of the said District Court in consolidated actions 5421-P.H. and 5678-P.H. in said District Court) and with directions to take further proceedings in conformity with the opinions and judgments of this Court of Appeals heretofore entered in Appeals No. 12,511 and No. 12,591.

The second motion for remand, with directions, is based on the ground that the opinions and judgments of this Court heretofore rendered in Appeals No. 12,511 and No. 12,591, and now final, establish and determine that said District Court was and is without jurisdiction of the proceedings in which said special master was appointed; that said District Court was therefore without power to appoint a special master or to award fees and costs of such special master out of funds on deposit in the registry of the Court and that the issues raised on said consolidated appeals have been determined by said opinions.

II

The two motions by appellants above referred to were argued and submitted together. As indicated, they were to remand these proceedings to the District Court with instructions to vacate the orders appealed from and to grant other relief.

The several appeals to which the two motions are directed arise out of litigation which has previously been before this Court and finally disposed of in Home Loan Bank Board v. Mallonee, 9 Cir., 196 F.2d 336, and Fahey v. O'Melveny & Myers, 9 Cir., 200 F.2d 420, certiorari denied 345 U.S. 952, 73 S.Ct. 863, rehearing denied 345 U.S. 978, 73 S.Ct. 1120. This Court there determined that the District Court was without jurisdiction of the subject matter of either of said consolidated actions and accordingly our mandate, filed May 21, 1953, directed dismissal of the Los Angeles Action (No. 5678-P.H.) and the principal pleadings in the Mallonee Action (No. 5421-P.H.).

In view of this Court's previous determination that the said consolidated actions present no justiciable controversy within the jurisdiction of the Federal Court, it necessarily follows that the District Court was and is without authority to proceed in these said consolidated actions or either of them or in any collateral matters which are not founded upon an independent basis of Federal jurisdiction. This Court's previous decisions in this matter require not only the dismissal of the principal pleadings and proceedings, but also the dismissal of matters ancillary thereto. Oils, Inc. v. Blankenship, 10 Cir., 145 F.2d 354, certiorari denied 323 U.S. 803, 65 S.Ct. 562, 89 L.Ed. 641; Cabaniss v. Reco Min. Co., 5 Cir., 116 F. 318.

It appears that the aforesaid special master was appointed in the said consolidated proceedings to perform functions which it has now been determined were beyond the power of the District Court to undertake. The master was originally appointed by the District Court on its own motion to supervise the transfer of custody of the assets of Long Beach Federal Savings and Loan Association from A. V. Ammann, the conservator, to the former management of Long Beach, and to supervise the accounting which the District Court ordered said Ammann to make to Long Beach. Thereafter supplemental orders were made broadening the duties of the special master, including the supervision of an inspection by Long Beach of the books and records of Federal Home Loan Bank of San Francisco. The District Court has awarded fees on account to the special master in the total amount of $64,000.00.

Appeals (Nos. 12,575, 12,893 and 13,055) were taken from four orders allowing fees to the special master in the total amount of $29,000.00 and directing payment from funds on deposit in the Registry of the District Court. Appellants contend that such payment constitutes an invasion of funds upon which San Francisco Bank has a lien inasmuch as there are no general funds on deposit available for payment of master's fees. Appellees moved to dismiss the appeals noted in this paragraph contending that these orders are interim and that they do not purport to assess the master's fees against any party or parties, and are therefore not appealable. However, since the effect of these orders is to withdraw from the registry of the Court funds upon which a lien is claimed, they constitute a final disposition of a fund in controversy to the extent of such payment, and hence are final and appealable. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157; cf. Reid v. Pauly, 9 Cir., 121 F. 652, 656. The motions to dismiss these three appeals should...