Stewart v. Dunn

• Decision Date: 28 June 1966
• Docket Number: No. 22081.,22081.
• Parties: Jack T. STEWART (Jack T. Stuart) or Any Other Officer of the U. S. District Court, Appellant, v. Vardaman S. DUNN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

363 F.2d 591 (1966)

Jack T. STEWART (Jack T. Stuart) or Any Other Officer of the U. S. District Court, Appellant, v. Vardaman S. DUNN, Appellee.

No. 22081.

United States Court of Appeals Fifth Circuit.

June 28, 1966.

Kathryn H. Baldwin, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Jackson, Miss., John W. Douglas, Asst. Atty. Gen., for appellant.

W. E. Suddath, Jr., Charles Clark, Jackson, Miss., Cox, Dunn & Clark, Jackson, Miss., Watkins & Eager, Jackson, Miss., of counsel, for appellee.

Before RIVES and THORNBERRY, Circuit Judges, and GARZA, District Judge.

THORNBERRY, Circuit Judge.

This is an appeal by the United States Marshal from an order of the United States District Court for the Southern District of Mississippi (hereafter referred to as the "Mississippi District Court") granting a writ of habeas corpus and vacating an order for the arrest of appellee, Vardaman S. Dunn, issued by Judge Allen E. Barrow of the United States District Court for the Northern District of Oklahoma (hereafter referred to as the "Oklahoma District Court"). The question presented in the case is whether the Mississippi District Court erred in holding that the order of arrest issued by Judge Barrow was void. We hold that the Mississippi District Court did so err, and we accordingly reverse that court's order discharging appellee from custody.

The complex and confused events leading up to this appeal arose out of a civil action brought by Hyde Construction Company in the Mississippi District Court against Koehring Company (a nonresident corporation) and others. The complaint, filed on August 30, 1961, sought damages for an alleged breach of contract and prayed for writs of chancery attachment to bind funds of the nonresident defendants in the hands of two named attachment defendants, as provided by §§ 2729-2734, Mississippi Code of 1942. Hyde Construction Company was represented by appellee, an attorney in Jackson, Mississippi.

On September 21, 1961, Koehring filed a motion in the Mississippi District Court to dismiss the action for lack of jurisdiction; to quash the process and return thereon on the ground that it was not doing business in Mississippi; and, in the alternative, for a change of venue to the Oklahoma District Court as the forum of convenience. While these motions were pending in the Mississippi District Court, Hyde Construction Company filed another suit against Koehring and others on September 27, 1961, in the Chancery Court of Hinds County, Mississippi (hereafter referred to as the "Mississippi state court"). This suit was in all material respects the same as the cause of action filed by Hyde in the Mississippi District Court.

On June 15, 1962, the Mississippi District Court entered an order denying Koehring's motions to dismiss and to quash and also denying Koehring's motion for a change of venue. This order was appealed to the Fifth Circuit. While this appeal was pending, Koehring answered in the Mississippi state court, pleading for dismissal or for a stay pending final disposition of the federal suit. Then, on September 19, 1963, this Court held that the federal suit should be transferred under 28 U.S.C. § 1404(a) to the Oklahoma District Court. The Fifth Circuit did not reach the jurisdictional issue. Koehring Company v. Hyde Construction Company, 5th Cir. 1963, 324 F.2d 295. While Hyde's application for rehearing was pending in this Court, the Mississippi state court overruled Koehring's plea in abatement and set a trial date for February 17, 1964.

Koehring then moved the Fifth Circuit on December 16, 1963, to enjoin Hyde and its attorneys and agents from proceeding further with the state court action, on the grounds that it would subject Koehring to harassment and irreparable injury and that it was necessary to protect and effectuate the jurisdiction of this Court and its decision of September 19, 1963, on which Hyde's application for rehearing was still pending. Hyde opposed this motion.

On January 27, 1964, this Court denied Koehring's motion for injunction "without prejudice to appellant's Koehring's right to apply to the District Court to which the case was remanded for transfer back." Hyde's application for rehearing was denied by this Court on February 5, 1964, and on February 14 the mandate was issued on this Court's decision of September 19, 1963. This mandate was received by the Mississippi District Court on February 15, 1964, upon which date Hyde filed a motion in that court to reconsider the change of venue because of changed circumstances or, in the alternative, to consider the action voluntarily dismissed without prejudice. On February 24, 1964, the Mississippi District Court dismissed the case without prejudice. Meanwhile, the trial of the Mississippi state court case had been set for March 9, 1964.

Upon dismissal of the federal suit, Koehring filed in this Court, on March 4, 1964, a petition for mandamus and other relief against Hyde and Judge Mize of the Mississippi District Court. The petition sought the immediate execution of this Court's mandate ordering the transfer of the cause to Oklahoma and a temporary injunction against further proceedings in the Mississippi state court. On March 6, 1964, this Court issued a 10-day show-cause order on the petition and, pending determination, enjoined the parties from proceeding with the case in the state court. The Chancellor in the Mississippi state court then rescheduled the trial in state court for 2:00 P.M. on March 10, 1964. On March 10, however, this Court issued an order holding that the Mississippi District Court had erred in permitting dismissal and in declining to order immediate transfer to the Oklahoma District Court as required by the Fifth Circuit's mandate. This Court stated that its order "shall constitute a transfer to enable the parties to present the matter to the District Court of Oklahoma." The temporary restraining order was vacated as no longer necessary. Also on March 10, the Mississippi state court denied a motion by Koehring for continuance and set trial for 2:00 P.M. on March 11, 1964.

On March 11, Koehring filed in the Oklahoma District Court a motion for temporary restraining order and injunction restraining Hyde and its attorneys from proceeding further in the Mississippi state court case. This motion was heard by Judge Barrow on the morning of March 11. Present at the hearing were counsel for Koehring and appellee's law partner, representing Hyde. At 1:59 P.M., Judge Barrow, while withholding decision on the question raised by Hyde of his jurisdiction over the case, issued a temporary restraining order prohibiting Hyde and its attorneys from proceeding further in the state court action. Koehring's motion for injunction was set for hearing on March 16, 1964. Telegrams reciting that the temporary restraining order had been granted were sent that afternoon to the Chancellor who was presiding over the state court action, and to appellee, who received notice of Judge Barrow's action in open court in the Mississippi state court. The restraining order itself was served on appellee's law partner in Tulsa on March 11 and was served personally on appellee the following day, while he was in the process of trying the state court case.

The state court proceedings began on the afternoon of March 11. At that time, one of Koehring's attorneys announced that he had been advised that a restraining order had been granted by Judge Barrow prior to 2:00 P.M. Upon inquiry by the Chancellor, appellee stated that he wished to proceed with the trial of the case in state court. Later that afternoon, the Chancellor received the telegram to him from Judge Barrow, giving notice of the restraining order. The Chancellor stated that he would defer further action until March 23 unless appellee wished to proceed. Appellee responded that he did. The Chancellor denied Koehring's request for a continuance until March 23. When the proceedings in state court began on March 12, the Chancellor made a statement that all parties were directed to continue with the trial and that anything said to the contrary the previous day was stricken from the record.

In Tulsa on March 12, 1964, Koehring filed a petition for an order to show cause why Hyde and appellee should not be punished for contempt. The petition alleged that Hyde and appellee had actual knowledge of the restraining order and that they had continued in further proceedings in the state court in wilful disregard of that order. Acting on Koehring's petition, Judge Barrow issued an order to Hyde and appellee to appear before him in Tulsa at 10:00 A.M. on March 14, 1964, to show cause why they should not be held in contempt of court and dealt with accordingly. This order was personally served on appellee's law partner in Tulsa on March 12, and on appellee in Jackson, Mississippi, on March 13.

When the matter was called for hearing in Tulsa on March 14, appellee did not appear either in person or by an attorney. He had not communicated with the Court, nor was any explanation given for his failure to appear. When the hearing opened, Judge Barrow announced that this "is a criminal contempt proceeding," and commenced to take evidence showing the events that had transpired in Mississippi state court, the service of a copy of the show cause order upon appellee on March 13, and the wilful disobedience of the restraining order. At the conclusion of the hearing, Judge Barrow held that Hyde and its attorneys (appellee and appellee's law partner) were in civil contempt of the Court's restraining order. The Court reserved decision on the matter of damages and asked the United States Attorney to prepare an order for appellee's arrest. Judge Barrow stated that a hearing on the criminal contempt of appellee would be held when he was brought before the Court in the Northern District of Oklahoma. Judge Barrow then signed an "Order of Arrest" directed to...