Orenstein & Koppel Aktiengesellschaft v. KOPPEL IND. CAR, ETC.

• Decision Date: 04 February 1930
• Docket Number: No. 4937.,4937.
• Citation: 38 F.2d 532
• Parties: ORENSTEIN & KOPPEL AKTIENGESELLSCHAFT v. KOPPEL INDUSTRIAL CAR & EQUIPMENT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

38 F.2d 532 (1930)

ORENSTEIN & KOPPEL AKTIENGESELLSCHAFT v. KOPPEL INDUSTRIAL CAR & EQUIPMENT CO.

No. 4937.

Court of Appeals of District of Columbia.

Submitted December 2, 1929.

Decided February 4, 1930.

D. H. Stanley, of Washington, D. C., and Sidney Struble, and A. G. Hays, both of New York City, for appellant.

C. H. Butler, J. A. Kratz, and G. L. Munter, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This case is here on special appeal from an order of the Supreme Court of the District of Columbia denying a motion by appellant, defendant below, to vacate an attachment against property belonging to the defendant.

It appears that, prior to the opening of the war, April 6, 1917, defendant, a jointstock company organized under the laws of Germany, and having its principal place of business in this country, was transacting its business in the United States through various agencies. The business of defendant consisted principally in the manufacture and sale of industrial railway materials and equipment, and in the purchase and sale of merchandise on commission, including a large brokerage business. On June 15, 1918, the Alien Property Custodian seized the property of the defendant in the United States, and later sold the defendant's property to plaintiff company for $1,312,000. It is alleged that the property sold consisted of real and personal tangible and intangible rights, claims, titles, and interests, including the business of defendant's American branch as a going concern, together with the good will enjoyed by the defendant, including trade-names, trade-marks, symbols registered and unregistered, and patents.

It is alleged that following the war defendant, in violation of the terms of its contract, opened offices and agencies in plaintiff's territory, soliciting former customers to buy and sell merchandise of the kind previously dealt in by the American branch in competition with the plaintiff, using the names and symbols that had been transferred under the contract to the plaintiff. It is also alleged that defendant instituted vexatious and harassing suits and claims, not only in courts in this country, but in various foreign courts, and that it registered in territory where defendant carried on business the trade-marks, trade-names and symbols purchased by the plaintiff from the Alien Property Custodian. Plaintiff claims that by reason of these acts it has been damaged in the sum of $100,000, for which this suit was brought.

In aid of its suit plaintiff attached $150,000 of defendant's money in the possession of the Alien Property Custodian; and we are asked to review the action of the court below in refusing to dissolve this attachment.

Section 30 of Trading with the Enemy Act, as added by section 15 of the Settlement of War Claims Act of 1928, 45 Stat. 275 (50 USCA Appendix § 30), provides as follows: "Any money or other property returnable under subsection (b) or (n) of section 9 shall, at any time prior to such return, be subject to attachment in accordance with the provisions of the code of law for the District of Columbia, as amended, relating to attachments in suits at law and to attachments for the enforcement of judgments at law and decrees in equity, but any writ of attachment or garnishment issuing in any such suit, or for the enforcement of any judgment or decree, shall be served only upon the Alien Property Custodian, who shall for the purposes of this section be considered as holding credits in favor of the person entitled to such return to the extent of the value of the money or other property so returnable. Nothing in this section shall be construed as authorizing the taking of actual possession, by any officer of any court, of any money or other property held by the Alien Property Custodian or by the Treasurer of the United States."

Section 445 of the Code of the District of Columbia, among other things, provides: "In any action at law in the Supreme Court of the District of Columbia or the municipal court of said District, for the recovery of specific personal property, or a debt, or damages for the breach of a contract, express or implied, if the plaintiff, his agent or attorney, either at the commencement of the action or pending the same, shall file an affidavit showing the grounds of his claim and setting forth that the plaintiff has a just right to recover what is claimed in his declaration, * * * and where the action is to recover damages for the breach of a contract setting out, specifically and in detail, the breach complained of and the actual damage resulting therefrom, * * * the clerk shall issue a writ of attachment," etc.

The question here is one of jurisdiction of the court to issue the attachment in question, and it must be decided solely upon the sufficiency of the declaration, regardless of any defenses available to the defendant, since these are waived by its motion to dissolve the attachment. We think the averments of the declaration, if ultimately...