Field v. Kansas City Refining Co.

• Decision Date: 29 February 1924
• Docket Number: 6426.
• Citation: 296 F. 800
• Parties: FIELD v. KANSAS CITY REFINING CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F. 800

FIELD v. KANSAS CITY REFINING CO. et al.

No. 6426.

United States Court of Appeals, Eighth Circuit.

February 29, 1924

Richard H. Field, of Kansas City, Mo., pro se.

Charles L. Carr, of Kansas City, Mo. (James E. Goodrich, of Kansas City, Mo., on the brief), for appellees.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

KENYON Circuit Judge.

This is an appeal from an order of the District Court of the United States for the Western Division of the Western District of Missouri in the case of Kansas City Refining Company Plaintiff v. Kansas City Railways Company, Defendant; said case being one in equity in which receivers were appointed to carry on the business and operate the electric railway of the Kansas City Railways Company, and such other general duties as usually devolve upon a receiver. Appellant filed in said action a petition requesting said District Court of the United States to grant him permission to bring and prosecute suit in the circuit court of Jackson county, Mo., against the Kansas City Railways Company and said receivers, upon three causes of action, viz.:

'(1) A cause of action under section 1970 of the 1919 Revised Missouri Statutes to have judicially ascertained and determined the right, title, interest and estate of petitioner and said railways company and receivers respectively, in, to and upon the said parts of Main street, Nineteenth street and the intersection of said streets and also to have the court define and adjudge by its judgment or decree the right, title, interest and estate and all claims of petitioner and said railways company and receivers in, to or upon the said parts of said streets and also to an award of full relief thereon;

'(2) A cause of action for damages sustained by petitioner from said alleged trespasses of said railways company and said receivers upon said parts of said streets and the intersection of said streets; and,

'(3) A cause of action for a suit in ejectment against said railways company and said receivers for possession of said parts of said Main street and Nineteenth street and the intersection thereof.'

The court made an order on April 6, 1923, the substantial and controversial parts of which are as follows:

'1. The causes of actions set forth in the application of Richard H. Field are, in their essence, founded upon a claim made by Richard H. Field for property now in the possession of the receivers.

'2. Such claim should be asserted in this court in this proceeding.

'3. Richard H. Field, applicant, represents to the court that he is fearful of the jurisdiction of this court to hear and determine the causes of actions referred to in his application.

'4. The court is of the opinion that it has full power and jurisdiction to hear, and fully and finally determine all of the alleged causes of action mentioned in said application.

'Now, therefore, it is by the court ordered:

'(1) Applicant, Richard H. Field, be, and he is hereby, given permission within 30 days from the date hereof to file an intervening petition in this cause, asserting the causes of actions referred to in his application; and

'(2) In order to fully protect the rights of Richard H. Field in the event that it should be hereafter determined that this court is without jurisdiction to hear and determine the causes of actions referred to in applicant's petition, or any one of them, Richard H. Field be, and he is hereby, authorized and permitted, after the filing of the intervening petition referred to in the next preceding paragraph (subject at all times to conditions herein contained), to commence a suit upon said causes of action against the receivers of the defendant and the defendant in the circuit court of Jackson county, Mo., and to have summons issued and served as against the receivers and the defendant; but is not authorized or permitted to proceed further in the prosecution of such cause, or causes of action, unless and until further order of this court permits same to be done; and applicant is enjoined and restrained until the further order of this court from proceeding with said cause in said state court beyond the commencement of said suit in said court, and the issuance and service of summons.'

From this order appeal is taken to this court. Appellees move to dismiss said appeal on the grounds:

(a) That said order is not a final order or decision within the meaning of section 128 of the Judicial Code (Comp. St. Sec. 1120), authorizing appeals from final decisions of district courts.

(b) That said order is not an interlocutory order granting, continuing, refusing, dissolving, or refusing to dissolve an injunction, or an order appointing a receiver within the meaning of section 129 of the Judicial Code.

Section 129 of the Judicial Code (Comp. St. Sec. 1121), in part, is as follows:

'Where upon a hearing in equity in a district court, or by a judge thereof in vacation, an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, or an interlocutory order or decree shall be made appointing a receiver, an appeal may be taken from such interlocutory order or decree granting, continuing, refusing, dissolving, or refusing to dissolve, an injunction, or appointing a receiver, to the circuit court of appeals, notwithstanding an appeal in such case might, upon final decree under the statutes regulating the same, be taken directly to the Supreme Court.'

The order of the court heretofore referred to in granting appellant the right to commence action against the receivers of the defendant, and the defendant, in the state court, provides as follows:

'And applicant is enjoined and restrained until the further order of this court from proceeding with said cause in said court,' etc.

This order was an appealable one under section 129 of the Judicial Code

In Western Union Telegraph Co. v. United States & Mexican Trust Co. et al., 221 F. 545, 553, 137 C.C.A. 113, 121, this court said:

'Conceding that a restraining order granted without a hearing is not ordinarily appealable, yet a restraining order which is granted, or sustained, or denied after a hearing of the parties, and which in effect and in everything but name, is a temporary injunction, falls within the evident meaning of the statute, and is reviewable by appeal, and the orders in question were of that character.'

In this case, not only was the order in effect a temporary injunction, but it was such in name also. See Ward Baking Co. et al. v. Weber Bros. et al., 230 F. 142, 144 C.C.A. 440; Davis v. Hayden, 238 F.

734, 151 C.C.A. 584; Mississippi Valley Trust Co. v. Railway Steel Spring Co. et al., 258 F. 346, 169 C.C.A. 362; Smith v. Vulcan Iron Works, 165 U.S. 518, 17 Sup.Ct. 407, 41 L.Ed. 810; In re Tampa Suburban Railroad Co., 168 U.S. 583, 18 Sup.Ct. 177, 42 L.Ed. 589.

Appellee relies, to sustain the motion to dismiss, largely upon Highland Ave., etc., Railroad v. Equipment Co., 168 U.S. 627, 18 Sup.Ct. 240, 42 L.Ed. 605. There a receiver was appointed by interlocutory order, and incorporated in the order was a direction to the defendant to turn over and deliver to the receiver the property in its hands. It was held that this order was incidental and ancillary to the receivership, and that its inclusion in the order did not make the same appealable. Referring to Smith v. Vulcan Iron Works, 165 U.S. 518, 17 Sup.Ct. 407, 41 L.Ed. 810, and In re Tampa Suburban Railroad Co., 168 U.S. 583, 18 Sup.Ct. 177, 42 L.Ed. 589, the court in 168 U.S. 627, 630, 18 Sup.Ct. 240, 241 (42 L.Ed. 605), said:

'Each of those cases proceeded upon the fact that there was a distinct order granting, continuing or dissolving an injunction.'

There is a distinct order in this case granting an injunction.

The order being an appealable one, we pass to the merits of the controversy.

The property of the Kansas City Railways Company was in the custody and possession of the receivers of the federal court. The finding of that court was that the causes of action set forth in the application of appellant 'are, in their essence, founded upon a claim made by Richard H. Field for property now in the possession of the receivers. ' Appellant admits in his brief on page 11 that the property claimed is in the possession of the receivers, but alleges such possession to be tortious and illegal. It stands unquestioned in the record that the actual possession of the property is in the receiver.

Appellant bases his claim to sue in the state court upon three causes of action, which we have hereinbefore set forth. The first is under section 1970, Revised Statutes of Missouri 1919, which is as follows:

'Sec 1970. Suits to Determine Interest and Quiet Title-- How Instituted--All Rights and Interests May be Determined-- Effect of Judgment. Any person claiming any title, estate or interest in real property, whether the same be legal or equitable, certain or contingent, present or in reversion, or remainder, or whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. And upon the trial of such cause, if same be asked for in the pleadings of either party, the court may hear and finally determine any and all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said...