Bryan v. Smith

• Decision Date: 26 May 1949
• Docket Number: No. 9682.,9682.
• Citation: 174 F.2d 212
• Parties: BRYAN v. SMITH et al.
• Court: U.S. Court of Appeals — Seventh Circuit

174 F.2d 212 (1949)

BRYAN v.SMITH et al.

No. 9682.

United States Court of Appeals Seventh Circuit.

May 2, 1949.

Rehearing Denied May 26, 1949.

Harry I. Schwimmer and Robert B. Vaughan, both of Kansas City, Mo., for appellant.

Francis Heisler, of Chicago, Ill., and Herbert J. Backer, of Indianapolis, Ind., for appellee.

Before KERNER, MINTON, and DUFFY, Circuit Judges.

MINTON, Circuit Judge.

The question presented on this record is whether ancillary action can be taken for the enforcement of an interlocutory order made in a case that later was dismissed voluntarily.

On June 17, 1941, a suit was filed in the United States District Court for the Southern District of Indiana by the appellees against the appellants, who were, respectively, the plaintiffs and the defendants in that suit and in this proceeding, for various sums of money and to have a trust therefor impressed upon certain real estate in Marion County, Indiana, and Crawford and Clay counties, Illinois, title to which was held by the defendants.The matter was thereafter referred to a special master to make findings of fact and state conclusions of law thereon.On January 2, 1942, while the said suit was pending and in order to maintain the status quo, the District Court entered by agreement of the parties an interlocutory order, the material parts of which read:

"That the defendantsDamon Smith and Edith Smith convey to a trustee appointed by the Court all their right, title and interest in the real estate upon which plaintiffs claim to have any lien or in which they claim to have any interest, being certain farm lands located in Marion County, Indiana and in Crawford and Clay Counties, State of Illinois, subject to all existing liens and encumbrances, being more particularly described in the instruments of conveyance this day examined and approved by the Court.

* * * * * *

"All claims and rights of all parties asserted in this action shall remain unimpaired and unaffected by any disposition or other provision of this order, and none of the parties hereto waive any rights or claims in this action heretofore existing by reason of this order or any acts done thereunder."

On February 19, 1942, the master made findings of fact and stated his conclusions of law thereon, which were in favor of the plaintiffs.This report of the master was taken under advisement and never acted upon by the court.Thereafter, the parties entered into a written agreement settling their differences and informed the court thereof.On May 15, 1942, the court ordered the trustee to "convey all lands heretofore transferred to it by the defendantsDamon Smith and Edith Smith, his wife, pursuant to order of this Court of January 2, 1942," to the plaintiffs' nominee; the court approved the trustee's report, made allowances for the trustee's and the master's expenses and fees, and discharged the trustee.Upon written stipulation of the parties filed in the case on the same date, May 15, 1942, the court dismissed the suit with prejudice as to the plaintiffs, costs paid.

More than five years later, on September 29, 1947, in the same case that had been dismissed, the plaintiffs filed a petition in which they alleged that through fraud or mistake the defendants did not convey a certain 32.78 acres of land in Marion County, Indiana, that should have been conveyed under the order of January 2, 1942.The petition prayed that the defendants be ordered to show cause why the previous orders of the court had not been complied with, that the defendants be ordered to convey the 32.78 acres to the plaintiffs, and that in the event they failed to comply, a special master be appointed and authorized to make such conveyance to the plaintiffs.

The District Court assumed jurisdiction and ordered the defendants to appear on a day certain and that a copy of the order be served by registered mail on them and their attorneys of record in the old suit.On May 3, 1948, the defendants appeared by their attorneys and filed a motion to dismiss in which they alleged that they were and had been since the fall of 1942 residents of Kansas City, Missouri; that their former attorneys of record had not been their attorneys since the suit was dismissed May 15, 1942; that they had been served with no process; that the court had no jurisdiction; that the petition failed to state a claim upon which relief against the defendants could be granted; that the petition showed on its face that the case had been dismissed with prejudice; and a number of other grounds.

The District Court overruled the motion to dismiss and on the same date, May 3, 1948, entered an order, the material parts of which read as follows:

"This cause having been submitted to the Court for hearing on the plaintiffs' petition for a rule to show cause, and the Court having heard the arguments of counsel, and taking judicial cognizance of its previous orders and judgment heretofore rendered in this case, and being sufficiently advised in the premises, finds that the defendants failed to comply with the order of this Court made and entered January 2, 1942, in that they failed to convey their right, title and interest in all of the real estate upon which the plaintiffs claimed to have any lien or in which they claimed to have any interest being certain farm lands including one named in the complaint as the Eagle Bend Farm.

"And the Court further finds that the plaintiffs are entitled to the ownership of the 32.78 acres which were omitted from the description of the real estate conveyed by the defendants to the plaintiffs, which 32.78 acres are a part of the Eagle Bend Farm."

It will be noted that no answer was filed or evidence heard.The matter was submitted on the petition, argument of counsel, and judicial notice of the court's orders in the case, from which the court found that the defendants did not comply with the order of January 2, 1942, which was the interlocutory order to convey to the trustee, and then for the first time the court found either fraud or mistake, which one does not appear, and that the plaintiffs are the owners of "the 32.78 acres which were omitted from the description of the real estate conveyed by the defendants to the plaintiffs."For the sake of accuracy, it might be pointed out that the defendants never at any time conveyed any real estate to the plaintiffs.They conveyed to the trustee, who conveyed to the plaintiffs' nominee....