Dunn v. Stewart, Civ. A. No. 3534(J) (C).

• Decision Date: 08 April 1964
• Docket Number: Civ. A. No. 3534(J) (C).
• Citation: 235 F. Supp. 955
• Parties: Vardaman S. DUNN, Petitioner, v. Jack T. STEWART (Jack T. Stuart), or any other officer of any United States District Court, Respondent.
• Court: U.S. District Court — Southern District of Mississippi

235 F. Supp. 955

Vardaman S. DUNN, Petitioner, v. Jack T. STEWART (Jack T. Stuart), or any other officer of any United States District Court, Respondent.

Civ. A. No. 3534(J) (C).

United States District Court S. D. Mississippi, Jackson Division.

April 8, 1964.

COPYRIGHT MATERIAL OMITTED

Robert E. Hauberg, U. S. Atty., for Jack T. Stuart, respondent.

Charles Clark and William E. Suddath, Jr., Jackson, Miss., for Vardaman S. Dunn, petitioner.

MIZE, District Judge.

This cause is pending before the Court on a Writ of Habeas Corpus. After notice and a full hearing, and upon consideration of evidence and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law:

An Order for the arrest of Vardaman S. Dunn, a member in good standing of the bar of this Court for more than 25 years, was made by the United States District Court for the Northern District of Oklahoma on March 14, 1964, in Civil Action No. 5911 in that Court. This Order of Arrest is as follows:

"IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA HYDE CONSTRUCTION COMPANY, INC., | Plaintiff | CIVIL ACTION #5911 vs. > (Formerly No. 3175 U.S KOEHRING COMPANY, ET AL | D.C. Southern District of Defendants. | Mississippi) ORDER OF ARREST FILED Mar 14 1964 Noble C. Hood Clerk, U. S. District Court

DIRECTED TO ANY UNITED STATES MARSHAL:

"Now on this 14th day of March, 1964, Vardaman S. Dunn, having been ordered and directed to appear before this Court at 10:00 a. m. to show cause why he should not be held in contempt, and the said Vardaman S. Dunn having failed to appear as ordered and having presented no reason or excuse for his failure to so appear,

"NOW THEREFORE, you are hereby commanded to arrest Vardaman S. Dunn of Jackson, Mississippi, and bring him forthwith before the United States District Court for the Northern Judicial District of Oklahoma, in the city of Tulsa, Oklahoma.

"Dated this 14th day of March, 1964.

"s/ Allen E. Barrow "United States District Judge" This Order of Arrest was dispatched to Jack T. Stuart, United States Marshal for the Southern District of Mississippi, and was received by him on March 16, 1964, in Jackson, Mississippi. Jack T. Stuart, acting under and pursuant to said Order of Arrest, arrested Vardaman S. Dunn in Jackson, Mississippi, and took him into custody. After Vardaman S. Dunn was taken into the custody of Jack T. Stuart, a Writ of Habeas Corpus issued by this Court, directed to the said Jack T. Stuart or any other officer of any United States District Court, was served upon the said Jack T. Stuart, requiring him to have the body of the said Vardaman S. Dunn before this Court on March 20, 1964, pending which he was to be released on his own recognizance. This date has been twice extended by Orders of this Court and pending the hearing of this cause the said Vardaman S. Dunn has stood released upon his own recognizance under this Court's Writ of Habeas Corpus.

The circumstances causing the issuance of the Order of Arrest set out above are described in the following paragraphs.

On August 30, 1961, Cause No. 3175 was filed in the United States District Court for the Southern District of Mississippi by Hyde Construction Company, Inc. against Koehring Company. This was an action in personam to recover a $500,000.00 money judgment for damages for breach of warranty on a refrigerated concrete mixer. J. R. Scribner, an individual, and Dalrymple Equipment Company, Inc., a Delaware corporation, both residents of Mississippi, were summoned to answer as Chancery attachment defendants under statutes of the State of Mississippi. On September 21, 1961, Koehring Company challenged the jurisdiction of the District Court and moved to transfer the cause to Oklahoma under 28 U.S.C.A. § 1404(a). No answer was filed by Koehring Company at that time.

On September 22, 1961, Scribner and Dalrymple Equipment Company, Inc. filed their joint answer in said Cause No. 3175. Scribner denied any indebtedness to Koehring Company. Dalrymple Equipment Company, Inc. admitted an indebtedness of $8,846.51 and described an additional indebtedness of $177,701.88, alleged to be due to Koehring Finance Company, a Delaware corporation, and it was further alleged that Koehring Company owned no interest therein. No funds were paid into the registry of the Court at that time. No bond was filed.¹

On September 27, 1961, Hyde Construction Company, Inc. filed Cause No. 60,068 against Koehring Company in the Chancery Court of Hinds County, Mississippi. This was an action in personam to recover a money judgment in the amount of $500,000.00 for damages for breach of warranty on a refrigerated concrete mixer. It also made defendants Dalrymple Equipment Company, Inc. and Allied Equipment Company, who were summoned to answer as attachment defendants in Chancery under the provisions of Mississippi law.

From an adverse ruling filed June 19, 1962, on its motion to dismiss for lack of jurisdiction and to transfer in Civil Action 3175, Koehring Company requested and was allowed an interlocutory appeal by the District Court and the Court of Appeals for the Fifth Circuit.

Chancery Court action No. 60,068 was removable to the United States District Court for the Southern District of Mississippi, but Koehring Company elected not to remove the same. On January 30, 1963, Koehring Company elected to file an answer in the Chancery Court proceedings. In its sworn answer Koehring Company did not plead specially to the jurisdiction of the Court on the ground that the attachment proceedings were not instituted in conformity with Mississippi law, but instead, it defended generally on the merits of the action. On January 30, 1963, Dalrymple Equipment Company, Inc. answered the attachment process served upon it by the Chancery Court. It swore that it was not indebted to Koehring Company in any amount as of 10/2/61 (approximately the time of the service of the process), but stated that at that time Koehring Company was indebted to Dalrymple Equipment Company, Inc. in the amount of $1,950.95. Dalrymple Equipment Company, Inc. further described certain equipment indebtedness due to Koehring Finance Company, a Delaware corporation, but alleged that Koehring Company had no interest therein. This answer also made oath that on 11/30/62 Dalrymple Equipment Company, Inc. was indebted to Koehring Company in the amount of $18,477.44, and that it owed Koehring Finance Company $133,101.88, but that Koehring Company owned no interest therein. Dalrymple Equipment Company, Inc. further swore in its answer that whatever interest Koehring Company had in any funds in Dalrymple Company's hands had already been attached in Civil Action No. 3175 in the United States District Court. Comparing Dalrymple Company's sworn answer in the District Court of 9/22/61 and its sworn answer in the Chancery Court of 1/30/63, it is noted that the status of its debt position to Koehring Company and to Koehring Finance Company was not static, but showed some change on each date for which answer was made.

On September 19, 1963, an opinion was rendered by the United States Court of Appeals for the Fifth Circuit. It made no decision of Koehring Company's Motion to dismiss for lack of jurisdiction, but determined that the District Court should be ordered to transfer the case to Oklahoma under 28 U.S.C.A. § 1404(a) if this Court had jurisdiction, or under 28 U.S.C.A. § 1406(a) if the Court lacked jurisdiction. This opinion is reported at Koehring Co. v. Hyde Const. Co., 5 Cir., 324 F.2d 295. Hyde Construction Company, Inc. petitioned the Court of Appeals for a Rehearing.

On December 16, 1963, Koehring Company pursued a statutory discovery procedure available in the Chancery Court by propounding extensive interrogatories, which are the equivalent of taking testimony.² On the same date, December 16th, Koehring Company filed a motion for injunction in the United States Court of Appeals for the Fifth Circuit, seeking to enjoin the proceedings in the Chancery Court. Between December 16, 1963 and March 11, 1964, the date trial commenced, the docket of the Chancery Court shows that Koehring Company invoked that Court's jurisdiction on six occasions by pleadings variously seeking additional answers to Interrogatories, Inspection of Documents, Dismissal or Stay, and a Continuance. At a cost of more than $5,000.00, Hyde Construction Company, Inc. supplied the testimony required by Koehring Company's written interrogatories, in the Chancery Court.

On January 4, 1964, Hyde Construction Company, Inc. filed a response to Koehring Company's motion for injunction in the Court of Appeals, praying that the motion be denied and that the Court of Appeals send the case to the District Court of Mississippi for examination into changed conditions without the requirement that the case be transferred to Oklahoma. The Chancery Court re-set Cause No. 60,068 for trial, beginning March 9, 1964 at 2:00 o'clock P. M.

On January 27, 1964, the following Order was entered by the United States Court of Appeals for the Fifth Circuit:

"On consideration of appellants' motion for injunction, and of appellee's response thereto "IT IS ORDERED that appellants' motion for injunction be denied, without prejudice to appellants' right to apply to the District Court to which the case was remanded for transfer back."

On about February 15, 1964, the mandate of the Court of Appeals reached this Court. Hyde Construction Company, Inc. filed a motion seeking to have this Court, the Court to which the case was remanded, take proof upon "changed conditions warranting a transfer of this cause back from the State of Oklahoma." Hyde Construction Company also filed an alternative Notice of Dismissal. This Court interpreted the mandate of the Court of Appeals to require the District Court in Oklahoma to consider any changed circumstances warranting transfer back to Mississippi, but the Court was of the...