Axelrod v. Osage Oil & Refining Co.

• Decision Date: 08 November 1928
• Docket Number: 7971.,No. 7970,7970
• Citation: 29 F.2d 712
• Parties: AXELROD et al. v. OSAGE OIL & REFINING CO. et al. CONTINENTAL OIL CO. v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.2d 712 (1928)

AXELROD et al. v. OSAGE OIL & REFINING CO. et al.

CONTINENTAL OIL CO. v. SAME.

Nos. 7970, 7971.

Circuit Court of Appeals, Eighth Circuit.

November 8, 1928.

COPYRIGHT MATERIAL OMITTED

Lloyd A. Rowland, of Bartlesville, Okl., and J. H. Maxey, of Tulsa, Okl. (James D. Talbott, of Bartlesville, Okl., and Leahy, Maxey & MacDonald, of Tulsa, Okl., on the brief), for appellants Axelrod and others.

Ray S. Fellows, of Tulsa, Okl. (Albert H. Bell, of Tulsa, Okl., on the brief), for appellant Continental Oil Co.

James E. Whitehead, of Dallas, Tex., for appellee Osage Oil & Refining Co.

Before KENYON, Circuit Judge, and SCOTT and SYMES, District Judges.

KENYON, Circuit Judge.

As it is necessary in the discussion of the various questions involved in these two appeals to set forth rather fully the part of the facts in their particular relationship to the specific matters under discussion, we refrain, in order to minimize duplication, from any extended general statement of facts. It is sufficient to say that this case is one brought in equity by the Osage Oil & Refining Company (hereinafter designated the Osage Company) in the District Court of the United States for the Northern District of Oklahoma against Mamie Axelrod, Herman Axelrod, H. O. Dixon, J. R. Hoskins, Continental Oil Company (hereinafter designated the Continental Company), the Exchange National Bank of Tulsa, and First National Bank in Bartlesville, asking that said defendants be enjoined from claiming any rights in a certain leasehold of said Osage Company covering the southwest quarter of section 28, township 24 north, range 8 east, in Osage county, Oklahoma. The Continental Company filed a separate answer, claiming it had purchased a one-half interest in said lease from Mamie Axelrod for $50,000 in cash and $50,000 in oil to be produced, and had deposited the cash in the Exchange National Bank of Tulsa, Okl., to be delivered to her upon delivery of assignment and approval thereof by the Secretary of the Interior. Separate answer and cross-complaint were filed by Mamie Axelrod, Herman Axelrod, and H. O. Dixon, denying the claim of the Osage Company, and alleging that Mamie Axelrod was the owner of the lease in question by virtue of a sheriff's sale thereof in a mortgage foreclosure proceeding in the district court of Osage county, Oklahoma, in the case of Interstate Pipe Company against the Osage Company and one Whitehead.

The Exchange National Bank of Tulsa filed separate answer, alleging that it was holding the $50,000 in escrow, and that it had nothing to do with the lease and had no claims thereon. Defendant H. O. Dixon filed answer and cross-complaint against the Exchange National Bank, claiming he had an assignment of an interest in the escrow deposit. The Continental Company filed reply to the answer of the Exchange National Bank of Tulsa, and a cross-complaint as to said bank, asking that the $50,000 be paid into court to await its action.

The Exchange National Bank of Tulsa answered the cross-complaint of the Continental Company and asked that the First National Bank in Bartlesville, Okl., be made a defendant. This was done, and said bank filed answer to the cross-complaint of the Exchange National Bank of Tulsa, Okl., claiming it was entitled to $5,000 out of the $50,000 escrow deposit, and asked to have its rights protected.

The Osage Company filed a reply to the answer and cross-petition of Mamie Axelrod et al., denying her claim to a lease, and alleging that the judgment of the district court of Osage county and the sale by the sheriff of the lease were void, and had been so declared by the Supreme Court of Oklahoma, and that she and those claiming under her had no right, title, or interest of any kind in the lease. It also filed reply to the answer of the Continental Company and admitted certain equities in favor of said company.

The trial court found generally in favor of the Osage Company and entered a general decree against Mamie Axelrod et al., and also decreed that the Continental Company should be compelled to accept an assignment of an interest in the lease upon the same terms as it had agreed to in its contract with Mamie Axelrod. Mamie Axelrod, Herman Axelrod, H. O. Dixon, and the First National Bank in Bartlesville appealed from the decree, which appeal is No. 7970, and the Continental Company appealed separately, which appeal is No. 7971. We deal with both appeals in this opinion.

The question of the jurisdiction of this court to consider these appeals first challenges our attention. Appellee Osage Oil & Refining Company moves to dismiss the appeal of Mamie Axelrod, Herman Axelrod, H. O. Dixon, and the First National Bank in Bartlesville, on a number of grounds, the principal ones being that the decree was a joint one against appellants and against the Continental Oil Company, J. R. Hoskins, and the Exchange National Bank of Tulsa; that it was taken without notice to J. R. Hoskins and the Exchange National Bank of Tulsa; and that no effective order of severance was granted either as to them or the Continental Oil Company.

In the petition for appeal it was set forth that the Continental Oil Company had been requested to join therein, had declined to do so, and a severance and allowance of a separate appeal was asked. This was granted, and hence the question upon this motion is narrowed to the relationship of Hoskins and the Exchange National Bank to the appeal. It is not clear whether the language of the court's order covered a severance as to Hoskins and the Exchange National Bank. However, as no such claim is made in appellants' brief, we lay that matter aside.

The general rule is settled by a long line of decisions in the federal courts that, where there is a joint judgment or decree, all judgment defendants must join in an appeal, unless the record shows there has been a severance or its equivalent. American Surety Co. of New York v. People of State of Colorado (C. C. A.) 22 F.(2d) 624, 625; Arkansas Anthracite Coal & Land Co. et al. v. Stokes, et al. (C. C. A.) 2 F.(2d) 511; Priest v. Seaman (C. C. A.) 266 F. 844. A situation, however, as to the facts, may be presented, such as to take a case out of the general rule.

It seems to us that the main relief granted to complainant against Mamie Axelrod, Herman Axelrod, and H. O. Dixon is in no way joint with the relief granted as to Hoskins and the Exchange National Bank, and the rule as to joinder applies only to joint judgments. Be that as it may, however, it is certainly the law, and is not in conflict with the general rule we have referred to, that a mere nominal party, who has no substantial interest in the controversy is not a necessary party to an appeal. Only those whose rights may be substantially affected by the action of the appellate court are necessary parties.

In Dodson v. Fletcher (C. C. A.) 78 F. 214, 215, this court said: "All the parties to a suit or proceeding who appear from the record to have an interest in the order, judgment, or decree challenged in the appellate court must be given an opportunity to be heard there before that court will proceed to a decision upon the merits of the case." In Johnson v. Trust Co. of America (C. C. A.) 104 F. 174, 175, 176, this court said: "A summons and severance are not indispensable to the maintenance of an appeal by one of the parties to a decree, if it fairly appears from the record that the parties who might have joined have been notified to do so and have refused. * * * The rule is that all parties who appear to have an interest in the decree must be given an opportunity to be heard, before an appellate court will enter upon its consideration." In Babcock v. Norton et al. (C. C. A.) 5 F. (2d) 153, 155, the principle is stated as follows: "As an appellate court has no power to hear and determine a case unless all the parties substantially affected by the judgment or decree are brought before it, and inasmuch as in cases of a joint judgment or decree, summons and severance, or service of notification of appeal on necessary parties is essential to confer jurisdiction," etc.

From Simpkins Federal Practice (Rev. Ed. 1923) p. 978, we quote: "It may be stated, as a general rule, that all parties having an interest in the cause, and affected by the decree should join in the appeal, * * * but parties not affected by the decree need not join. * * * That parties having an interest in the decree must join in the appeal has been held to be jurisdictional, unless there has been a summons and severance, * * * but not when interest nominal, or not substantial." Higbee v. Chadwick (C. C. A.) 220 F. 873; Kidder v. Fidelity Ins. Trust & S. D. Co. (C. C. A.) 105 F. 821; Farmers' Loan & Trust Co. v. Waterman, 106 U. S. 265, 269, 1 S. Ct. 131, 27 L. Ed. 115; Gilfillan v. McKee, 159 U. S. 303, 312, 16 S. Ct. 6, 40 L. Ed. 161; Winters v. United States, 207 U. S. 564, 28 S. Ct. 207, 52 L. Ed. 340.

The petition for appeal alleged that the Exchange National Bank of Tulsa had no substantial interest in the appeal. Said bank so stated in acceptance of service of copy thereof. The order granting the same stated: "The court finds that the defendants, J. R. Hoskins and Exchange National Bank have no substantial interest in the appeal, and that the petitioners are entitled to and are hereby granted a severance and separate appeal herein." In its answer in the case it pleaded that it was merely an escrow agent, and "has never at any time attempted to interfere with any person in the possession or operation of said leased premises, and claims no right, title or interest therein except as such escrow holder or agent." And in its answer to the cross-complaint of the Continental Oil Company is this prayer: "And that at such time as this court may direct, this answering defendant be authorized and permitted to deliver to this court, or into the hands of the clerk thereof, the sum of fifty thousand dollars ($50,000.00)...