Amalgamated Clothing Workers v. Curlee Clothing Co.

• Decision Date: 21 April 1927
• Docket Number: No. 7413.,7413.
• Citation: 19 F.2d 439
• Parties: AMALGAMATED CLOTHING WORKERS OF AMERICA, LOCAL UNION NO. ___, et al. v. CURLEE CLOTHING CO.
• Court: U.S. Court of Appeals — Eighth Circuit

19 F.2d 439 (1927)

AMALGAMATED CLOTHING WORKERS OF AMERICA, LOCAL UNION NO. ___, et al. v. CURLEE CLOTHING CO.

No. 7413.

Circuit Court of Appeals, Eighth Circuit.

April 21, 1927.

Luther Ely Smith, of St. Louis, Mo. (Elmer E. Pearcy, of St. Louis, Mo., on the brief), for appellants.

Francis M. Curlee and Albert D. Nortoni, both of St. Louis, Mo., (Kenneth Teasdale, of St. Louis, Mo., on the brief), for appellee.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

STONE, Circuit Judge.

This is an appeal from a final decree enjoining appellants (defendants below) from doing various acts set forth in the decree.

The sole question presented here is that of the jurisdiction of the trial court as a federal court. Jurisdiction is based solely on diversity of citizenship. There is no dispute that appellants are citizens and residents of the state of Missouri. Appellee claims to be a corporation organized under the laws of the state of Delaware and, therefore, a citizen and resident of that state for jurisdictional purposes. The controversy is whether, for jurisdictional purposes, appellant is to be regarded as a Delaware or a Missouri corporation — or, more accurately, whether it is to be regarded as one or the other at the date this complaint was filed, because, obviously, that date is controlling as to the jurisdictional question involved. Anderson v. Watt, 138 U. S. 694, 702, 703, 11 S. Ct. 449, 34 L. Ed. 1078; Mullen v. Torrance, 9 Wheat. 537, 539, 6 L. Ed. 154.

There is no dispute as to the essential facts. The complaint was filed on July 2, 1925. On that date there were in legal existence two corporations. We understand that no issue is made as to that, but that appellants concede the legal formation of a Delaware corporation (Curlee Clothing Company) and appellee concedes that the Missouri corporation (Curlee Clothing Company) had not then been dissolved. June 15, 1925, the Delaware corporation was licensed to do business in Missouri. June 16, 1925, all of the property of the Missouri company was transferred to the Delaware company in consideration of the issuance to the stockholders of the Missouri company of stock, share for share, in the Delaware company and assumption of the indebtedness of the Missouri company. This deed and this bill of sale were not recorded until July 6th. June 16, 1925, the president of the Missouri company wrote the stockholders that "the reorganization of the company as a corporation under the laws of the state of Delaware has been effected" and requested that they send in their stock "at your earliest convenience" to be exchanged for stock in the Delaware company. At this time, the Missouri company had 5,370 shares outstanding. By June 30, 1925, all had been sent in and Delaware company stock delivered in lieu thereof, except 120 shares belonging to a stockholder in California. This latter stock was, on July 2d, in the mails from California and was received in St. Louis on July 3, 1925, and Delaware company stock issued therefor on that date. At the meeting of the stockholders (Missouri company) on June 16, 1925, at which resolutions were passed authorizing the transfer of all the property to the Delaware company and approving the resolution of acceptance thereof by the Delaware company, the meeting was adjourned to July 15, 1925. July 6, 1925, the attack upon the jurisdiction of the trial court began. July 9th, a special meeting of the stockholders of the Missouri company was held and a resolution of dissolution adopted. This resolution was recorded on July 10th in the city recorder's office and filed on July 11th, in the office of the secretary of state. July 15th (presumably in pursuance of the adjournment of June 16th) an "adjourned meeting of former stockholders" was held at which all certificates of stock of the Missouri company were ordered canceled.

There was much testimony that this change of corporate form had been in contemplation for several years before any of the above steps were taken to execute such intention. Also, that the main reasons for such change were of a business nature unconnected with federal court jurisdiction, although that consideration was one of the anticipated advantages of such change. Also, that the initial steps above in this change were taken without contemplation of this or other litigation. The only steps remaining when this bill was filed were those necessary to dissolve the Missouri corporation. The testimony is convincing that had this litigation not intervened this change would have proceeded and been consummated, probably at the adjourned meeting of July 15th. It is evident that the attack upon the jurisdiction (July 6th) hastened the matter and resulted in the meeting (July 9th) at which such dissolution...