Brictson Mfg. Co. v. Woodrough

• Decision Date: 24 October 1922
• Docket Number: 227.
• Citation: 284 F. 484
• Parties: BRICTSON MFG. CO. v. WOODROUGH, District Judge.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F. 484

BRICTSON MFG. CO. v. WOODROUGH, District Judge.

No. 227.

United States Court of Appeals, Eighth Circuit.

October 24, 1922

M. E Culhane, of Minneapolis, Minn., and Frank L. Weaver and William M. Giller, both of Omaha, Neb., for petitioner.

F. A Mulfinger and Robert J. Webb, both of Omaha, Neb., for respondent.

Before LEWIS and KENYON, Circuit Judges, and YOUMANS, District Judge.

PER CURIAM.

The respondent, District Judge, refused to comply fully with the mandate of this court issued in Brictson Mfg. Co. v Close et al., 280 F. 297. That was a stockholders' suit, in which a receiver of all of the corporate assets was appointed, on a complaint in which the relief sought was a dissolution and liquidation of the corporation and its affairs, if a reorganization was not brought about in the meantime; but we held that neither pleadings nor proof brought the controversy within the chancellor's reach that the matters complained of could be dealt with only by stockholders and directors of the corporation, that there was an abuse of discretion in appointing the receiver, and that the District Court was without jurisdiction to proceed in the cause for any purpose or to give any relief. Our conclusion was that restoration to the lawful owner of property that had been taken from its possession under the forms of law, but without right, should be made; and so the mandate, after ordering a reversal and the cause remanded, commanded action by the District Court in these plain and unmistakable words:

'That the receiver be required to return all property in his hands to those from whom he received it, that he be thereupon discharged, and that the bill of complaint be dismissed at complainants' costs.'

It pointed out the consecutive steps in obviously appropriate procedure. But the action of respondent, when moved to enter decree on the mandate, was this: It was ordered that the complaint of Close et al. be dismissed at their cost, that property in the hands of the receiver be 'impounded in the hands of the receiver until further proceedings are had on the petition as to intervention,' that action on that part of the mandate which required that the receiver be directed to return the property in his hands to those from whom he had received it be suspended; and afterward, but on the same day, it was ordered that other stockholders who were seeking to intervene in the suit of Close et al. be permitted to do so. We pass by the fact that the suit of Close et al was not pending, but had been dismissed out of court when leave was granted to intervene therein. Thereupon petition of the Brictson Manufacturing Company was filed here, in which it is prayed that the writ of mandamus issue to compel respondent to comply with the mandate. Rule to show cause issued, and respondent has made his return thereto. He admits the facts that have been stated, and then sets up as causes and reasons why he did not comply fully with the mandate of this court, and why the writ prayed for should not issue against him, the substance of a part of the allegations found in the so-called petition in intervention of a large number of other stockholders in the Brictson Manufacturing Company. That petition is also in the record here. It repeats in general terms what we found and considered and passed upon in the suit of Close et al., and adds thereto a charge that the petitioners were each induced to buy the shares which they respectively hold in the Brictson Company through false and fraudulent representations made to them in behalf of that company, and on that they say they...