Hertz v. Knudson

• Decision Date: 30 May 1925
• Docket Number: No. 6811.,6811.
• Citation: 6 F.2d 812
• Parties: HERTZ et al. v. KNUDSON, Deputy and Acting Secretary of Trade and Commerce of Nebraska.
• Court: U.S. Court of Appeals — Eighth Circuit

6 F.2d 812 (1925)

HERTZ et al. v. KNUDSON, Deputy and Acting Secretary of Trade and Commerce of Nebraska.

No. 6811.

Circuit Court of Appeals, Eighth Circuit.

May 30, 1925.

Hubert Harvey, of St. Paul, Minn. (Myron L. Learned, of Omaha, Neb., on the brief), for appellants.

Before LEWIS, Circuit Judge, and VAN VALKENBURGH and FARIS, District Judges.

VAN VALKENBURGH, District Judge.

The Lion Bonding & Surety Company is a corporation organized and existing under and by virtue of the laws of the state of Nebraska. For some years prior to 1921 it had been conducting a business of insurance in the state of Nebraska, and was doing business and had property also in eighteen other states, including the state of Minnesota. The Nebraska Laws of 1919, c. 190 (Comp. Stat. 1922, §§ 7742-7748), contained the following provisions:

"Sec. 4. Delinquent Companies — Proceedings — Liquidation.

"(1) Whenever any domestic company is insolvent, or has refused to submit its books, papers, accounts, or affairs to the reasonable inspection and examination of the department of trade and commerce, or has neglected or refused to observe an order of the department of trade and commerce, to make good within the time prescribed by law, any deficiency, whenever the capital of a stock company, or the reserve of a mutual company, shall have become impaired, or it has by contract of reinsurance, or otherwise, transferred or attempted to transfer substantially its entire property or business, or entered into any transaction the effect of which is to merge substantially its entire property or business in the property or business of any other company without first having obtained the written approval of the department of trade and commerce, or is found, after an examination, to be in such condition that its further transaction of business would be hazardous to its policy holders, or to its creditors, or to its stockholders, or to the public; or has willfully violated its articles of incorporation or association or any law of this state, or whenever any trustee, director, manager or officer thereof has refused to be examined under oath touching its affairs, the department of trade and commerce may apply to the district court, or any judge thereof, in the county or judicial district in which the principal office of such company is located, for an order directing such company to show cause why the department of trade and commerce should not take possession of its property, records and effects and conduct or close its business, and for such other relief as the nature of the case and the interest of its policy holders, creditors, stockholders or the public may require.

"(2) On such application, or at any time thereafter, such court or judge may, in his discretion, issue an order restraining such company from the transaction of its business, or disposition of its property, records and effects until the further order of the court. On the return of such order to show cause, and after a full hearing, the court shall either deny the application or direct the department of trade and commerce forthwith to take possession of the property, records and effects, and conduct the business of such company * * * until on the application of the department of trade and commerce, or of such company, it shall, after a like hearing, appear to the court that the cause of such order directing the department of trade and commerce to take possession has been removed, and that the company can properly resume possession of its property, records and effects, and the conduct of the business.

"(3) If, on a like application and order to show cause, and after a full hearing, the court shall order the liquidation of the business of such company, such liquidation shall be made by and under the direction of the department of trade and commerce, which may deal with the property, records, effects and business of such company in the name of the department of trade and commerce or in the name of the company, as the court may direct and it shall be vested by operation of law with title to all the property, effects, contracts and rights of action of such company as of the date of the order so directing it to liquidate. The filing or recording of such order in the office of the register of deeds in any county where property is located in the state shall impart the same notice that a deed, bill of sale, or other evidence of title, duly filed or recorded by such company would have imparted."

Pursuant to the provisions of the statutes aforesaid, the department of trade and commerce of the state of Nebraska applied to the district court of Douglas county, Neb., for an order directing it to take possession of the property and to conduct the business of the Lion Bonding & Surety Company, upon the ground that said company was found to be in such condition that its further transaction of business would be hazardous to its policy holders, its creditors, its stockholders, and the public, and alleging other violations of law committed by defendant company. On April 12, 1921, the district court of Douglas county made an order directing the department of trade and commerce to take possession forthwith of the property, records, and effects and to conduct the business of the defendant company, as in said statutes provided. Later, on May 28, 1921, the same court, upon supplemental petition, made an order that the business of the Lion Bonding & Surety Company be liquidated under the direction of the department of trade and commerce, and that department was directed to deal with the property, records, effects, and business of the defendant as in such cases provided.

On May 2, 1921, while the decree of the Nebraska court was in full force, and the department of trade and commerce was in actual possession thereunder of the property of the defendant, Lion Bonding & Surety Company, in that state, one Karatz, a citizen of Minnesota, filed a bill in equity against the Lion Bonding & Surety Company in the District Court of the United States for the District of Minnesota, and by that court appellants herein were appointed receivers to collect all assets, wherever situated, and to realize upon and distribute the same. These receivers duly qualified and entered upon their duties. Thereafter intermediate suits were filed to determine the respective rights of the Minnesota receivers and the department of trade and commerce of the state of Nebraska to administer this estate. On the 23d day of April, 1923, the Supreme Court of the United States (262 U. S. 77, 43 S. Ct. 480, 67 L. Ed. 871) held upon appeal that the federal court of Minnesota had no jurisdiction over the Karatz suit, for the reasons, among others, that the amount claimed in the complaint was less than the sum of $3,000, and that there was want of equity in that the suit was brought by an unsecured simple contract creditor. It followed that the appointment of appellants as receivers was without authority.

Thereafter this suit in equity was filed in the District Court of the United States for the District of Minnesota, in which the department of trade and commerce for the state of Nebraska was named as plaintiff, and appellants A. J. Hertz and John L. Levin, receivers as aforesaid, were named as defendants. The complaint contained the following allegation: "That the grounds upon which this court's jurisdiction depends are the fact that the plaintiff is the state of Nebraska, and the defendants are citizens of another state, and that the amount involved in the suit is in excess of the sum of three thousand dollars ($3,000)."

It was alleged upon information and belief that the defendants had reduced to their possession assets amounting in cash to approximately $3,000, and had in their possession and in their names, as receivers, real estate of the value of $14,000 formerly belonging to the Lion Bonding & Surety Company, and now the property of the plaintiff. The bill prayed an accounting and for recovery accordingly. To this bill the defendants filed a joint answer, and the defendant Levin also filed a separate answer. In these answers it was alleged that the receivers had acted in good faith and had rendered valuable services and incurred large expense in collecting and preserving the property and effects of the Lion Bonding & Surety Company. It was also alleged in the answers that, while the litigation was pending and the issues undetermined, a number of conferences were held between one Amos Thomas, alleged to be the duly qualified and acting agent of the department of trade and commerce of the state of Nebraska, and defendants and their counsel, at which it was agreed, for the sake of economy and for the benefit of the estate, that, pending the determination by the courts of the issues then before them, defendants should act as receivers in the state of Minnesota, all districts in the Eighth Circuit in which they had attempted to qualify by filing a certificate under section 56 of the Judicial Code, and in all other federal districts where they had applied for and obtained appointment as receivers in ancillary proceedings except in the District of Nebraska, and that the department of trade and commerce should act as receiver in the state of Nebraska, where the home office of the company was located; that, in the event of the ultimate establishment of the department as liquidator of said estate, the defendants should be reimbursed for their necessary disbursements and expenditures, and should be paid the reasonable value of their services; and, on the other hand, in the event of the ultimate establishment of defendants as receivers, that said estate should recognize and accept the work of the department as receiver in the territory aforesaid, and should pay its necessary disbursements and expenditures and the reasonable value of its services. It was further alleged that the plaintiff and defendants then and there agreed that such expenditures...