357 F.2d 557 (8th Cir. 1966), 17636, Wallach v. Cannon

Docket Nº:17636.
Citation:357 F.2d 557
Party Name:Richard WALLACH, Appellant, v. Norman CANNON, Oklahoma Tax Commission, et al., Appellees.
Case Date:March 11, 1966
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 557

357 F.2d 557 (8th Cir. 1966)

Richard WALLACH, Appellant,

v.

Norman CANNON, Oklahoma Tax Commission, et al., Appellees.

No. 17636.

United States Court of Appeals, Eighth Circuit.

March 11, 1966

Page 558

John J. Cole, of Heneghan, Roberts & Cole, St. Louis, Mo., filed motion to dismiss appeal on behalf of appellees Leslie Conner, Herman Merson and A. D. Howell.

Robert J. Koster, Asst. U. S. Atty., St. Louis, Mo., filed motion to dismiss appeal on behalf of appellees U.S. Dept. Office of Dallas, Tex., and/or Labor Dept. Attys., Earl Street, Truett E. Bean, Dallas, Tex., and Harry Campbell, Jr., and the U.S. Internal Revenue Service and/or its Directors in Oklahoma City, Okl., and Earl Wiseman.

Jerome W. Sidel, of Sidel & Sandweiss, St. Louis, Mo., filed motion to dismiss appeal on behalf of appellee Jacob Finke and/or United Investment Co.

Leo F. Laughren, St. Louis, Mo., filed motion to dismiss appeal pro se.

John J. Cole, of Heneghan, Roberts & Cole, St. Louis, Mo., also filed motion to dismiss appeal on behalf of Alma Zell Akers, R. M. Akers and H. J. Vanhook.

William G. Guerri, St. Louis, Mo., filed motion to dismiss appeal on behalf of appellee Mercantile Trust Co.

Richard Wallach, St. Louis, Mo., filed motions in answer to appellees.

Before JOHNSEN and MATTHES, Circuit Judges.

PER CURIAM.

The appeal is dismissed for want of a substantial question as basis for a regular review.

The order appealed from is one making dismissal of appellant's complaint as to each of appellees severally and resultingly of the complaint in its whole. Our disposition is for the reason that in such claim as the complaint could be regarded as stating the District Court for the Eastern District of Missouri was without jurisdiction to deal with the merits against any of appellees.

Appellees are some 27 in number. 1 Most of them are citizens of the State of Oklahoma, upon whom service of summons had been made beyond the territorial limits of effective service under

Page 559

Rule 4(f), Fed.Rules Civ.Proced., 28 U.S.C.A. Two of appellees are the U.S. Department of Labor and the U.S. Internal Revenue Service, upon which the service of process attempted had not been in accordance with the requirements of Rule 4(d)(5). 2 Two others consist of the State of Oklahoma and the Oklahoma Tax Commission, a govermental agency of the State, which under the Eleventh Amendment are not subject to suit in the federal district courts on a claim such as that asserted, and as to which the service of summons engaged in under Rule 4(d)(6) was therefore incapable of effecting jurisdiction over them. 3 The rest of appellees, 5 in number, are citizens of the State of Missouri, the same as appellant.

Without need to go further here than the element of capturing process, the want of jurisdiction over the governmental appellees referred to, both federal and state, is plain and no additional comment is called for. As to all of the other appellees, both the Oklahoma citizens and the Missouri citizens, the capturing process involved equally would be unable to provide the court with jurisdiction to deal with or grant relief against them, unless the claim was of a nature as to which there existed jurisdictional basis other than diversity, and which had provision for service of process comprehending that here engaged in-- which question will be later considered.

Appellant, in layman's reading and interpretation, had made denomination and predication of the complaint as an 'interpleader civil action and constitutional case and controversy'. Specifically, he regarded the interpleader statutes, 28 U.S.C.A. §§ 1335, 1397 and 2361, with their broad venue and process provisions, as affording him means for instituting, the suit in the Eastern District of Missouri and effecting processive capture of appellees there on that basis.

But appellant's claim was not one that came within the interpleader statutes or that...

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