260 F.2d 607 (7th Cir. 1958), 12048, Jung v. K. & D. Min. Co., Inc.

Docket Nº12048.
Citation260 F.2d 607
Party NameHenry M. JUNG et al., Plaintiffs-Appellants, v. K. & D. MINING CO., Inc., et al., Defendants-Appellees.
Case DateOctober 28, 1958
CourtUnited States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 607

260 F.2d 607 (7th Cir. 1958)

Henry M. JUNG et al., Plaintiffs-Appellants,

v.

K. & D. MINING CO., Inc., et al., Defendants-Appellees.

No. 12048.

United States Court of Appeals, Seventh Circuit.

October 28, 1958

Rehearing Denied Dec. 16, 1958.

Page 608

Zeamore A. Ader, Chicago, Ill., for appellants.

Floyd F. Shields, Chicago, Ill., Samuel J. Wettrick, Seattle, Wash., for appellees.

Before MAJOR, SCHNACKENBERG and PARKINSON, Circuit Judges.

PARKINSON, Circuit Judge.

On March 25, 1957, some two years after the District Court had denied a motion of the plaintiffs to vacate an order dismissing their complaint for the reason 'that no cause of action has been stated', the plaintiffs filed a written statement electing to stand on their complaint, as amended. The District Court thereupon entered an order dismissing plaintiffs' cause of action. This appeal followed.

The complaint, as amended, is in two counts. Count I seeks recovery of money plaintiffs paid for securities sold to them by the defendants in alleged violation of the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, 15 U.S.C.A. § § 77a et seq. and 78a seq., respectively. Count II is in the form of a common law action for fraud.

The District Court filed a written memorandum holding that there was no sale of securities within the meaning of the aforementioned Acts and held as 'no cause of action has been stated under those Acts, the Complaint will be dismissed.'

The core question presented to us on this appeal is whether the complaint does or does not state a claim upon which relief can be granted. This question must be resolved against the backdrop of the Federal Rules of Civil Procedure, 28 U.S.C.A., which do not require the alleging of facts sufficient to constitute a cause of action but only a short and plain statement of the claim showing that the pleader is entitled to relief, and the well-settled rule of pleading thereunder that on a motion to dismiss, a complaint should be construed in the light most favorable to plaintiff with all doubts resolved in his favor; and in view of what is alleged, with all allegations well pleaded being taken as true, if it can reasonably be conceived that the plaintiff can make a case upon trial which would entitle him to some relief the complaint should not be dismissed. Tahir Erk v. Glenn L. Martin Co., 4 Cir., 1941, 116 F.2d 865, 867 and 869; Continental Collieries v. Shober, 3 Cir., 1942, 130 F.2d 631, 635; Cool v. International Shoe Co., 8 Cir., 1944, ...

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21 practice notes
  • 542 F.Supp. 323 (N.D.Ill. 1982), 81 C 522, Securities Fund Services, Inc. v. American Nat. Bank and Trust Co. of Chicago
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 27, 1982
    ...Services, 277 F.Supp. 940, 941 (N.D.Iowa 1967); Murphy v. Wheaton, 381 F.Supp. 1252, 1258 (N.D.Ill.1974); Jung v. K & D Mining Co., 260 F.2d 607, 608 (7th Cir. 1958). Accordingly, the following are accepted II SFS is the Shareholder Service Agent for Templeton Growth Fund Ltd. (Templeto......
  • 286 F.2d 901 (8th Cir. 1961), 16566, Brouk v. Managed Funds, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 13, 1961
    ...53 S.Ct. 586, 77 L.Ed. 1148; R. H. Johnson & Co. v. S.E.C., 2 Cir., 1952, 198 F.2d 690; Jung v. K & D Mining Co., 7 Cir., 1958, 260 F.2d 607; Kardon v. National Gypsum Co., D.C.E.D.Pa.1946, 69 F.Supp. 512; D.C.1947, 73 F.Supp. 798; In re Managed Funds, Incorporated, Par. 76, 662, C.......
  • 160 S.E.2d 260 (Ga.App. 1968), 43318, Harper v. Defreitas
    • United States
    • Georgia Court of Appeals of Georgia
    • January 31, 1968
    ...be construed in the light most favorable to plaintiff with all doubts resolved in his favor. Jung v. K. & D. Mining Co., 7 Cir., 260 F.2d 607, 608. The plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are......
  • 264 F.2d 195 (2nd Cir. 1959), 85, Schwartz v. Eaton
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • February 24, 1959
    ...Osborn v. Bank of U.S.22 U.S. (9 Wheat.) 738, 821-822, 6 L.Ed. 204, it lacks no power to do so. See Jung v. K & D. Mining Co., 7 Cir., 260 F.2d 607. Moreover, we do not see that the ruling plaintiff seeks to appeal will even affect the evidence introduced at trial. Plaintiff may still p......
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21 cases
  • 542 F.Supp. 323 (N.D.Ill. 1982), 81 C 522, Securities Fund Services, Inc. v. American Nat. Bank and Trust Co. of Chicago
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 27, 1982
    ...Services, 277 F.Supp. 940, 941 (N.D.Iowa 1967); Murphy v. Wheaton, 381 F.Supp. 1252, 1258 (N.D.Ill.1974); Jung v. K & D Mining Co., 260 F.2d 607, 608 (7th Cir. 1958). Accordingly, the following are accepted II SFS is the Shareholder Service Agent for Templeton Growth Fund Ltd. (Templeto......
  • 286 F.2d 901 (8th Cir. 1961), 16566, Brouk v. Managed Funds, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 13, 1961
    ...53 S.Ct. 586, 77 L.Ed. 1148; R. H. Johnson & Co. v. S.E.C., 2 Cir., 1952, 198 F.2d 690; Jung v. K & D Mining Co., 7 Cir., 1958, 260 F.2d 607; Kardon v. National Gypsum Co., D.C.E.D.Pa.1946, 69 F.Supp. 512; D.C.1947, 73 F.Supp. 798; In re Managed Funds, Incorporated, Par. 76, 662, C.......
  • 160 S.E.2d 260 (Ga.App. 1968), 43318, Harper v. Defreitas
    • United States
    • Georgia Court of Appeals of Georgia
    • January 31, 1968
    ...be construed in the light most favorable to plaintiff with all doubts resolved in his favor. Jung v. K. & D. Mining Co., 7 Cir., 260 F.2d 607, 608. The plaintiff is entitled to the most favorable inferences that can reasonably be drawn from the complaint, even if contrary inferences are......
  • 264 F.2d 195 (2nd Cir. 1959), 85, Schwartz v. Eaton
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Second Circuit
    • February 24, 1959
    ...Osborn v. Bank of U.S.22 U.S. (9 Wheat.) 738, 821-822, 6 L.Ed. 204, it lacks no power to do so. See Jung v. K & D. Mining Co., 7 Cir., 260 F.2d 607. Moreover, we do not see that the ruling plaintiff seeks to appeal will even affect the evidence introduced at trial. Plaintiff may still p......
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