Dempsey v. Guaranty Trust Co. of New York, 8001
| Decision Date | 28 October 1942 |
| Docket Number | No. 8001,8058.,8001 |
| Citation | 131 F.2d 103 |
| Parties | DEMPSEY v. GUARANTY TRUST CO. OF NEW YORK. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Norman Crawford and Thos. Hart Fisher, both of Chicago, Ill., for appellant.
Cyrus H. Adams and James P. Dillie, both of Chicago, Ill., and Otis T. Bradley, of New York City (Isham, Lincoln & Beale, of Chicago, Ill., and Davis, Polk, Wardwell, Gardiner & Reed, of New York City, of counsel), for appellee.
Before SPARKS, MAJOR, and MINTON, Circuit Judges.
Appellant was appointed upon the petition of a creditor, by the Probate Court of Cook County, Illinois, as administrator of the estate of Gabriel de Fontarce, a Free Frenchman, who died in London, England, in June, 1941, and who at the time of his death was domiciled either in Great Britain, Egypt, Eire, or France. He appeals separately from two orders of the District Court in a suit to determine title to, and possession of certain securities belonging to the estate and placed in appellee's custody in New York during decedent's lifetime. The complaint was in one paragraph.
The first appeal was taken on April 1, 1942, from an order of the same date. That order dissolved a temporary restraining order and denied a temporary injunction sought to prevent appellee from disposing of the securities and also from participating in any probate proceedings other than those in Cook County, until final decree in the cause. That appeal was docketed in this court on May 8, 1942.
Some time after the first appeal was taken, the District Court dismissed the original complaint on motion, and from this ruling no appeal was taken.
On May 26, 1942, appellant filed in the same case in the District Court what he terms his amended and supplemental complaint, and on June 5, 1942, he moved that court to enter an order, under Rule 75 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, supplementing the record in the first appeal by including therein his amended and supplemental complaint, which contained everything set forth in the original complaint, and more. That court suggested to him that he move for an injunction on his amended complaint, that the court had not seen it, and the court might grant it upon hearing. Appellant declined to do this and the court denied his motion, and from that ruling the second appeal was taken. It was docketed here on July 2, and the two appeals were consolidated for hearing and disposition.
Appellee resisted the consolidation in this court of the two appeals, and urged that No. 8058 be dismissed on the ground that it was not taken from an appealable order. We think its objections are well taken. Denial of a motion for leave to supplement a record is certainly not such a final order as is contemplated by the statute which provides for a review of final decisions. 28 U.S.C.A. § 225. Moreover, we are convinced that the matter sought to be added to the record in No. 8001 is not of such a character as may be considered by us in this appeal. The District Court denied the injunction on the basis of the bill of complaint as originally filed. Only that was before him at the time he took the action as to which complaint is here made. We are informed by the record in No. 8058 that the first nine subparagraphs of the amended complaint are the same as those of the original bill, and that the amendment consists of the addition of six more subparagraphs, the six paragraphs of the prayer for relief remaining the same in the two bills. We think it would be very unfair for this court to consider the order complained of in the light of a pleading which was not before the District Court when it entered its order. The amended bill also prays an injunction, and it might well be that the court would consider that the additional matter showed sufficient merit to appellant's claim to justify the issuing of the injunction prayed.
Appellant earnestly urges his right to have the amended complaint before this court under the provision of Rule 75 which he asserts permits "the appellant to add to any record on appeal `anything material' which may be omitted therefrom `either before or after the record is transmitted to the appellate court.'" (His italics.) It is clear that the purpose of this part of Rule 75 was to provide a simple method of adding to the record on appeal any matter...
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...in the district court after we accepted the appeal. This proposed amended complaint is not before us, see Dempsey v. Guaranty Trust Co. of New York, 131 F.2d 103, 104-05 (7th Cir.1942) (equivalent circumstances under predecessor to 28 U.S.C. Sec. 1292(a) practice), cert. denied, 318 U.S. 76......
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Stell v. Savannah-Chatham County Bd. of Ed., 20557
...adequate to preserve the appeal, and that our holding here will render the order of dismissal moot.4 The case of Dempsey v. Guaranty Trust Company, 7 Cir., 1942, 131 F.2d 103, is not to the contrary as it turned on the fact of a question arising in the District Court under an amended compla......
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