Brown v. Fletcher

• Decision Date: 14 March 1916
• Docket Number: 229.
• Citation: 231 F. 92
• Parties: BROWN et al. v. FLETCHER.
• Court: U.S. Court of Appeals — Second Circuit

231 F. 92

BROWN et al. v. FLETCHER.

No. 229.

United States Court of Appeals, Second Circuit.

March 14, 1916

Monroe Buckley, of Philadelphia, Pa., for appellants.

W. P S. Melvin, of New York City, for appellee.

Before COXE, WARD, and ROGERS, Circuit Judges.

WARD Circuit Judge.

The complainants in this case seek to recover from the defendant as substituted testamentary trustee under the will of Conrad Braker, trustee, a trust fund of $10,000 left by him to his son, C. M. Braker, which they claim by virtue of various assignments beginning with an assignment from C. M. Braker. It was heretofore considered by us in 206 F. 462, 124 C.C.A 367, the bill being dismissed without prejudice on the ground that the Circuit Court had no jurisdiction because, although the complainants were citizens of Pennsylvania, several of the assignors in their line of title, as well as the defendants, were citizens of New York. The Supreme Court upon certiorari, reversed the decree on the ground that the cause of action, being a claim to recover an interest in a trust estate. was not a chose in action within section 24 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1091 (Comp. St. 1913, Sec. 991)). Brown v. Fletcher, 237 U.S. 583, 35 Sup.Ct. 750, 59 L.Ed. 1128. This decision followed a previous case in 235 U.S. 589, 35 Sup.Ct. 154, 59 L.Ed. 374, arising out of controversies between the same parties as to other interests in the same estate. The citizenship of the plaintiffs' assignors therefore became immaterial, and the cause was remanded to this court 'to proceed to its duty of hearing and deciding the case conformably to law.'

Notwithstanding what we heretofore said, we think the opinion of the Supreme Court requires us now to hold that the Circuit Court had jurisdiction in equity. The bill was filed October 4, 1911, in the then Circuit Court, and November 20, 1912, the defendant was allowed to amend his answer by setting up the decree of the Surrogate's Court of the County of New York settling his account as testamentary trustee and ordering him to pay over the fund in his hands to C. M. Braker. March 6, 1912, the defendant's demurrer, upon the ground, among others, that C. M. Braker was a necessary party, was overruled.

The defendant thereafter began a proceeding for a settlement of his accounts as testamentary trustee in the Surrogate's Court. The order for service of the citation which was returnable May 14, 1912, was dated March 21st and personal service was made in Philadelphia on the complainant Schermerhorn April 10th and on the complainant Brown April 12th, all in conformity with the provisions of sections 2524 and 2525 of the New York Code of Civil Procedure. The complainants objected to the service as invalid on the ground that the citation should also have been mailed, but we think that the requirement of mailing only applies when the service is by publication. When it is personal, mailing is wholly unnecessary. Kennedy v. Arthur, 11 N.Y.Supp. 661; Sabin v. Kendrick, 2 A.D. 96, 37 N.Y.Supp. 524; McCully v. Heller, 66 How.Prac. (N.Y.) 468. Nor do we think there is any merit in the further objection that the decree was not final because the Surrogate granted a temporary stay.

The District Judge dismissed the bill on the ground that the decree of the Surrogate's Court was res judicata of the question involved in the federal court. In other words, he held that, the Surrogate's Court having in a proceeding in rem, with both the complainants and the defendant before it, ordered the defendant to pay the fund to C. M. Braker, the District Court could not order him to pay it to the complainants. We did not pass upon this question in our former opinion, because we reversed the decree of the District Court without prejudice for the jurisdictional reason above pointed out.

The decree of the Surrogate's Court is certainly an adjudication between the same parties upon the same subject-matter. But the complainants say that the Surrogate's Court had no jurisdiction to dispose of the complainants' rights because they had been first submitted to the federal court. Of course, if the complainants had appeared and taken part in the proceedings in the Surrogate's Court, they could not, after the decree against them, have asked the federal court to go on and dispose of the controversy anew. Mitchell v. First National Bank, 180 U.S. 471, 21 Sup.Ct. 418, 45 L.Ed. 627. But it is the settled law of the federal courts that the court which first takes cognizance of a cause of action shall have exclusive jurisdiction until it has finally disposed of it. The defendant by going into the Surrogate's Court could not defeat or impair the jurisdiction of the federal court, which had already attached, or deprive the complainants of their right as citizens of another state to submit their interests to the federal court. Sharon v. Terry (C.C.) 36 F. 337, 355; Wallace v. McConnell, 13 Pet. 143, 151, 10 L.Ed. 95; Taylor v. Taintor, 16 Wall. 366, 370, 21 L.Ed. 287; Harkrader v. Wadley, 172 U.S. 148, 164, 19 Sup.Ct. 119, 43 L.Ed. 399.

In Byers v. McAuley, 149 U.S. 608, 13 Sup.Ct. 906, 37 L.Ed. 867, the bill was not filed in the Circuit Court until after the administrator's account had been approved and confirmed by the orphans' court and only one day before the day fixed for distribution, yet the Circuit Court was held to have jurisdiction to establish the rights of citizens of other states in the fund to be distributed. It was pointed out, however, that while it is the right of citizens of other states to resort to the federal courts to establish their claims against executors, administrators, and trustees of decedents, the federal court could not go beyond this to administer the estate or disturb in any way the possession of...