Beury v. Beury
| Decision Date | 09 May 1955 |
| Docket Number | No. 6961.,6961. |
| Parties | Ella Fischer BEURY and John Farr Simons, Co-executors of the Estate of Charles E. Beury, deceased, et al., Appellants, v. William BEURY et al., Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Edward W. Eardley, Charleston, W. Va. (Stanley C. Morris, Charleston, W. Va., Arthur R. Harris, Philadelphia, Pa., Edwin P. Rome, Philadelphia, Pa., Steptoe & Johnson, Charleston, W. Va., and Scarborough & Harris, Philadelphia, Pa., on the brief), for appellants.
William H. Timbers, Gen. Counsel, Washington, D. C. (Thomas G. Meeker, Asst. Gen. Counsel, and Aaron Levy, Washington, D. C., Atty., on the brief), for Securities and Exchange Commission, amicus curiae.
George Richardson, Jr., Bluefield, W. Va. (Joseph M. Sanders, Joseph M. Crockett, Welch, W. Va., Richardson, Hudgins & Hancock, Sanders & Sanders, Bluefield, W. Va., and Crockett & Tutwiler, Welch, W. Va., on the brief), for appellees.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
This is an appeal from an order quashing service of process upon two non-resident defendants in a stockholders' derivative action to recover damages against certain directors for alleged mismanagement and fraud on the corporation. The non-resident defendants were served on the theory that relief was asked under the Securities Exchange Act of 1934, 15 U.S.C.A. 78a et seq., as well as under common law and equitable principles. The judge below quashed the service of process on the non-residents on the ground that a cause of action under the Securities Exchange Act was not alleged.
While we do not agree with the reasoning of the judge below that the Securities Exchange Act confers jurisdiction to entertain only those actions which involve some right of recovery which goes beyond those common law rights which might have been adjudicated and enforced by appropriate action in a state or federal court prior to the passage of that act, we need not decide whether the complaint here states a cause of action under the act as properly interpreted, for the reason that the case is not properly before us. The order quashing service of process as to the two defendants was in no sense a final order from which an appeal lies to this court. Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S.Ct. 590, 37 L.Ed. 443; National Bank of Rondout, N. Y. v. Smith, 156 U.S. 330, 15 S.Ct. 358, 39 L. Ed. 441; Oneida Navigation Corp. v. W. & S. Job & Co., 252 U.S. 521, 40 S.Ct. 357, 64 L.Ed. 697; Arnold v. United States for Use of W. B. Guimarin & Co., 263 U.S. 427, 44 S.Ct. 144, 147, 68 L.Ed. 371. As said in the case last cited:
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