Arkansas Anthracite Coal & Land Co. v. Stokes

• Decision Date: 19 November 1924
• Docket Number: No. 6353.,6353.
• Parties: ARKANSAS ANTHRACITE COAL & LAND CO. et al. v. STOKES et al.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 511 (1924)

ARKANSAS ANTHRACITE COAL & LAND CO. et al. v. STOKES et al.

No. 6353.

Circuit Court of Appeals, Eighth Circuit.

November 19, 1924.

Vincent M. Miles, of Ft. Smith, Ark. (Thomas B. Pryor, of Ft. Smith, Ark., on the brief), for appellants.

George O. Patterson, of Clarksville, Ark., and Ben Cravens and Fadjo Cravens, both of Ft. Smith, Ark., for appellees.

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

FARIS, District Judge.

Appellee Mary A. Stokes brought this action in the District Court of the United States, against appellant Arkansas Anthracite Coal & Land Company (hereinafter called Coal Company, for brevity) and one J. K. Gearhart, as president thereof, for the alleged conversion of 480 shares of stock each of the Coal Company and of the Pennsylvania Mining Company. Subsequently, and before the trial, the Coal Company was put into the hands of one Denman, as receiver, and he was made a party defendant.

Originally, the action was on the law side, but upon the coming in of Fremont Stokes, husband of the original plaintiff, as an intervener, it was upon the motion of defendants and by stipulation of all parties transferred to the equity side and tried by the court without a jury, with the result that appellee Mary A. Stokes had judgment and decree against the Coal Company for the sum of $8,000, with interest from the date of the alleged conversion.

No personal service was had on Gearhart, who is a resident and citizen of the state of Pennsylvania; but under a writ of attachment, issued in the case, certain lands, situate in Arkansas and which he is alleged to own, were seized and by the decree ordered sold though no personal judgment was rendered against him. Gearhart appeared specially and moved to quash the alleged service of summons upon him. It had been sought to serve him by the publication of a warning order, pursuant to the practice and procedure of the local courts. The record fails to disclose what, if any, action was had upon this motion to quash; but Gearhart in no wise appeared or answered, and he does not join in this appeal.

From the decree thus rendered, the Coal Company and its receiver, only, appeal. Because Gearhart did not join in the appeal, and because, as it is now urged, no valid reason is shown by the record for his failure to do so, we are confronted on the threshold of the case by a motion of appellees, which was submitted with the case, to dismiss the appeal.

It is well settled that all parties defendant, against whom a decree is rendered, must join in an appeal therefrom, unless those failing to join have been requested to do so and have refused, which facts of request and refusal must, to obviate dismissal appear of record. 4 Foster, Federal Practice 3770; Inglehart v. Stansbury, 151 U. S. 68, 14 S. Ct. 237, 38 L. Ed. 76; Hardee v. Wilson, 146 U. S. 179, 13 S. Ct. 39, 36 L. Ed. 933. Since nothing appears in the record touching either a request to or a refusal by Gearhart to join in this appeal, this motion must be sustained, if the trial court, having jurisdiction over him, rendered a judgment against him.

As said, Gearhart is a citizen and resident of Pennsylvania, as the complaint itself avers. He never appeared in the case, except specially, and then only for the purpose of moving to quash the attempted service on him. This action was begun in the District Court of the United States, and not in a state court. In the case of Big Vein Coal Co. v. Read, 229 U. S. loc. cit. 36, 33 S. Ct. 694, 57 L. Ed. 1053, involving a similar situation, the Supreme Court of the United States said:

"Section 915 was before this court in Ex parte Railway Company, 103 U. S. 794, and it was held that as, under section 739 of the Revised Statutes, Act of March 3, 1875, 18 Stat. 470, c. 137, then in force, no civil action, not local in its nature, could be brought against any one by original process in any United States Circuit Court other than that for the state of which he was an inhabitant or in which he was found at the time of serving the writ, an attachment could not be issued, the defendant being a nonresident and not having been served with process. It was further held that an attachment was but an incident to a suit and unless the suit could be maintained the attachment must fall. In other words, in cases where the defendant could not be sued and jurisdiction acquired over him personally, the auxiliary remedy by attachment could not be had, as attachment was not a means of acquiring jurisdiction. The same view was taken in Nazro v. Cragin, 3 Dillon, 474, by Mr. Justice Miller, on the circuit. Ex parte Railway Company, supra, was but an affirmance, as to the right of attachment where no personal service could be had, of the former case of Toland v. Sprague, 12 Peters, 300, wherein it was held that a person was not amenable to attachment against his property except where process could be served upon his person."

Since, therefore, Gearhart was neither served personally, nor was he subject to personal service, nor did he enter his appearance, no valid judgment could be rendered against him, and no valid writ of attachment could issue against his property, or alleged property. He was not required to appeal from a judgment, or an order which the court had no jurisdiction to enter. We need not discuss the effect, or possible effect, which his joinder in this appeal might have had upon the question of jurisdiction, but merely rest content in holding that the rule requiring joinder in the appeal of all those persons against whom a decree has been entered ought not and does not apply here. It follows that the motion to dismiss the appeal should be overruled.

Coming now to the merits: Three assignments of error are made in the brief of appellants and strenuously urged for reversal: (a) That under the facts in evidence there was no conversion of the stock by defendants; (b) that there was no sufficient evidence of the market value of the stock, at the time of its alleged conversion; and (c) that the court erred in refusing to permit the introduction of evidence proffered to show that defendant Coal Company was holding the stock, because of a debt owing by Fremont Stokes to the Coal Company.

We are unable to concur in the insistence of defendants' counsel that there is no evidence of the fact of conversion. The evidence showed, and it was not denied, that Fremont Stokes sent two certain certificates for 480 shares of stock each, in the Coal Company and in the Pennsylvania Mining Company, owned by him and then standing in the name of Gearhart, trustee, or of Fremont Stokes, to Gearhart, as president of the Coal Company, with the request that in lieu thereof (as had been theretofore discussed and agreed) 960 shares of stock of the Coal Company be issued to Mary A. Stokes. Fremont Stokes testified that he had theretofore given this stock to his wife, Mary A. Stokes, the plaintiff herein. Much correspondence was had both before and after the forwarding of this stock to defendant Coal Company. But shortly after these two certificates of stock were sent to defendant Coal Company, Gearhart wrote to Fremont Stokes, among other things, this: "Relative to certificate for 480 shares in both companies standing in my name as trustee. I will issue in place thereof 960 shares of Coal Company stock in name of Mary A. Stokes and the balance of commission stock due you in your name and send to you in a few days. The commission stock will be issued at this time."

Subsequently, the Coal Company issued a single certificate for 1,045 shares of its stock in the name of Fremont Stokes, but never forwarded same to him or to Mrs. Stokes. So far as the record discloses, the Coal Company has this certificate yet. This certificate for 1,045 shares seems to include the 960 shares which Gearhart agreed to issue in the name of Mary A. Stokes and forward to her. This fact, as well as the alleged reason for the...