Totten v. Harlowe, 6675.

• Decision Date: 21 December 1936
• Docket Number: No. 6675.,6675.
• Citation: 66 App. DC 373,88 F.2d 755
• Parties: TOTTEN et ux. v. HARLOWE et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

66 App. DC 373, 88 F.2d 755 (1936)

TOTTEN et ux. v. HARLOWE et al.

No. 6675.

United States Court of Appeals for the District of Columbia.

Argued November 18, 1936.

Decided December 21, 1936.

Edward S. Duvall, Nelson Wilson, and Jacob N. Halper, all of Washington, D. C., for appellants.

Paul E. Lesh and B. Woodruff Weaver, both of Washington, D. C., for appellees.

Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ.

PER CURIAM.

In this appeal appellants ask to have set aside a substitution of trustees under a deed of trust executed in October, 1929. Four hundred and ninety notes aggregating $385,000 were made and delivered on the security of the property conveyed in the trust. The original trustees were Luther A. Swartzell and Edmund D. Rheem. Good cause existed why they should be removed and new trustees substituted, and in February, 1931, a suit was instituted by Elizabeth S. Moore for this purpose. In March, 1931, the Supreme Court of the District made a decree in her suit substituting Francis W. Hill, Jr., and the Second National Bank of Washington as trustees. In the Moore suit no other noteholder appeared or was made a party, nor was the action prosecuted as a class suit. In November, 1932, appellees, holding notes of an approximate value of $88,000 secured by the deed of trust, sought in the same court judicial foreclosure of the trust and the appointment of a receiver pendente lite, alleging default in payment of taxes. The court appointed a receiver, who operated the property continuously thereafter until November 27, 1935, when the decree now appealed from was signed. The receiver paid the taxes and ended the default. Howe Totten, one of appellants, was at the time of the institution of the suit owner of the property, and Priscilla S. Totten, coappellant, his wife, was made a party solely because of her inchoate right of dower. Subpœnas were directed to both appellants, and Howe Totten appeared — but Mrs. Totten was not served, though an alias subpoena and a pluries subpœna were issued during the progress of the receivership. A second pluries subpœna was issued in 1934 and served.

The first question presented arises as the result of her motion, by special appearance, to quash the service of this subpœna for failure to serve within proper time. The trial court found there had been no discontinuance and no prejudice and overruled the motion. This was correct. Besides — Mrs. Totten has since pleaded to the merits and thus waived her special appearance. See Guarantee Savings, Loan & Inv. Company v. Pendleton, 14 App.D.C. 384; Boss v. Hagan, 49 App. D.C. 106, 261 F. 254, 8 A.L.R. 1508.

On December 5, 1934, the lower court granted appellees' motion for leave to file an amendment to the bill designed to secure the appointment of new trustees on the theory that the substitution of trustees in the Moore suit had been ineffectual. Appellants answered this amendment on December 26th. Thereafter, in February, 1935, they moved to set aside the order appointing the receiver, alleging payment of the taxes, to which motion appellees countered by asking leave to file an amendment alleging default in the payment of the principal of the debt. Leave to amend was in this instance denied.

What the court below did was to confine the amendment of the bill to the single object of securing a reappointment of the same trustees. The complaint was otherwise dismissed, and the only error complained of by appellants on this appeal is that the same trustees formerly appointed in the Moore suit were reappointed in the present suit, the theory being that the appointment in the first instance was in all respects correct and that the action of the court in holding it ineffectual was error. But in either case the result is the same. In this respect nothing that happened can prejudice appellants' interests, and therefore there is nothing of a practical nature of which they may complain. The court, in declining to permit an amendment of the bill to...