Ball v. Chapman

• Decision Date: 19 September 1924
• Docket Number: No. 3375.,3375.
• Citation: 1 F.2d 895
• Parties: BALL v. CHAPMAN.
• Court: U.S. Court of Appeals — Seventh Circuit

1 F.2d 895 (1924)

BALL v. CHAPMAN.

No. 3375.

Circuit Court of Appeals, Seventh Circuit.

September 19, 1924.

Louis B. Wehle, of New York City, and Harold F. White, of Chicago, Ill., for appellant.

Charles Le Roy Brown, of Chicago, Ill., for appellee.

Before ALSCHULER and EVANS, Circuit Judges, and FITZHENRY, District Judge.

EVAN A. EVANS, Circuit Judge.

Plaintiff, as receiver of the Haytian American Corporation, brought this suit against appellee, Chapman, to recover an alleged secret and illegal promotion profit of $1,100,000, which was obtained in the organization and disposition of the stock of the insolvent company. A similar suit was brought in the United States District Court for the Southern District of New York, against his associates and Chapman, and resulted in a decree for the defendants who were before that court, which was affirmed upon appeal. 294 F. 227. Chapman was not served with process in the New York suit.

The statement of the issues of fact and law therein set forth is full and complete and makes it unnecessary to restate them. The issues in the instant suit are identical with those involved in the suit in the Second circuit, herein called the New York suit, with two exceptions. In the New York suit, plaintiff sought to amend his complaint and was refused permission so to do. In the present suit the allegations which were sought to be introduced by amendment in the New York suit were made a part of the complaint as originally filed, and to that extent the pleadings are different. The other new issue is one raised by appellee, who denies the authority of plaintiff in this so-called ancillary receivership proceeding to maintain this suit.

Respecting the alleged difference in the plaintiff's cause of action, due to the presence in the complaint before us of allegations which were absent in the New York suit (because of the refusal of the court to allow the amendment), the Circuit Court of Appeals of the Second Circuit said:

"Plaintiff served a notice of motion dated November 10, 1922, for leave to amend the complaint. In support of this motion the solicitor for plaintiff filed an affidavit stating that the facts set forth in the proposed amendments were not fully known to counsel at the time of filing the bill. * * * The reasons given for delay were not satisfactory to the District Court; the trial judge observing: `It is summarily stated that counsel has only recently become aware of the matters now alleged. This is far from being enough, where amendment is sought after decision going to the root of the suit.' Nevertheless, in a memorandum dated November 23, 1922, the court pointed out that the proposed amendments added nothing to the legal value of the complaint and denied the motion for leave to amend. * * * We shall not consider the proposed amendments and shall look only to the bill of complaint, but to avoid misunderstanding, we may observe in passing that we agree with the District Court that the proposed amendments would not have made any difference."

The lower court dismissed the bill of complaint, and entered a decree for defendant. The dismissal in the New York suit was likewise on the pleadings.

We are asked to first determine what weight should be given the decision of a court of co-ordinate jurisdiction, where the legal question is not only similar, but arises out of the same facts, the same transactions, and wherein the plaintiff in each suit is the same, and the parties defendant, in the suit that is ended, were some of the alleged tort-feasors who, with the defendant in the present suit, practiced the alleged fraud. While fully recognizing that such prior decision of the co-ordinate court is not conclusive upon us, it is manifestly entitled to great weight; and this is so, not only because of the respect we entertain for the opinions of these courts, but because such a policy tends to secure uniformity of ruling, and at the same time terminates litigation which otherwise might be well-nigh endless.

Concededly, appellee's liability, if any existed, was not different from the liability of the defendants in the New York suit. Those defendants there have by that litigation been finally relieved of all liability. Notwithstanding his associates have escaped liability, appellee may still be held (Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U. S. 111, 32 S....