Backus v. Brooks

• Decision Date: 28 July 1911
• Docket Number: 1,345.
• Citation: 189 F. 922
• Court: U.S. District Court — District of Connecticut
• Parties: BACKUS et al. v. BROOKS et al.

189 F. 922

BACKUS et al. v. BROOKS et al.

No. 1,345.

United States Circuit Court, D. Connecticut.

July 28, 1911

Albert McClatchey, for complainants.

Wing &amp Russell, for defendants.

PLATT District Judge.

It would be a tremendous task to bunch in this memorandum the facts which seem to be well pleaded in the bill, and therefore admitted by the demurrer. It is an unusually verbose and complicated presentation of facts, and will speak for itself. No abstract which satisfies my mind would help the higher powers, and therefore I refrain from the attempt. At the time the bill was filed an ex parte request was made for a preliminary injunction to prevent the alienation of stock in the Sealshipt Oyster System by either Brooks or the System until final hearing. When the affidavits were read, I was instantly satisfied that such an order was not warranted by the facts presented, which were substantially those found in the bill.

There were two sets of plaintiffs and two sets of defendants. One of the plaintiffs presented a state of facts which seemed to set forth a wrong which ought to be dealt with in a court of law. The other plaintiffs presented a state of facts which many years before might have appealed to the conscience of a court of equity, if the proper parties had come before it but it struck me that they came too late, and in an improper manner, and with no very definite idea of what their wrongs were and what party they expected the court to enforce a remedy upon. The preliminary injunction was therefore refused, and later came the demurrers, amplyfying and defining with accuracy the vague notions which came over me at the beginning.

I do not know of any equity rule, written or unwritten, which prohibits the defendants from filing such demurrers as those here presented without first answering the allegations of fraud. Certainly no rule, with even a strained construction put upon it, could affect the rights of the Sealshipt Oyster System. Taking the broadest view possible of the facts and equity rule 32, I cannot accept the dicta found in Johnston v. Mercantile Co. (D.C.) 127 F. 845, and Jahn v. Lumber Co. (C.C.) 147 F. 631. Those cases were both properly decided on the facts, and the reference to an uncited equity rule was unnecessary. It is probable that in neither case was the matter taken up, except in the most incidental way. Equity rule 32 was not even mentioned.

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