Franz v. Franz

Decision Date28 October 1926
Docket NumberNo. 7434.,7434.
Citation15 F.2d 797
PartiesFRANZ v. FRANZ et al.
CourtU.S. Court of Appeals — Eighth Circuit

S. Mayner Wallace, of St. Louis, Mo. (Allen McReynolds, of Carthage, Mo., on the brief), for appellant.

Gustavus A. Buder, Jr., and Oscar E. Buder, both of St. Louis, Mo., for appellees.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

This cause was before this court on a former appeal. See Franz v. Buder, 11 F.(2d) 854. The facts up to the time of the rendition of the opinion on the former appeal are there stated, and need not be reiterated here. After the mandate on the former appeal was filed in the trial court, and on March 31, 1926, Ehrhardt W. Franz (hereinafter called plaintiff) filed an amended bill of complaint against Gustavus A. Buder, Gustav A. Franz, G. A. Franz and G. A. Buder as trustees for Sophie Franz, Sophie Franz, Sherman H. Kleinschmidt, Helen Kleinschmidt, Eleanor Kleinschmidt, an infant, Nellie A. Franz, William P. Fosdick and John J. Rowe as executors of Walter G. Franz, deceased, Mississippi Valley Trust Company as administrator in Missouri of Walter G. Franz, deceased, Clara E. Franz, Pacific-Southwest Trust & Savings Bank as executor of and trustee for the estate of Ernst H. Franz, deceased, Mississippi Valley Trust Company as administrator in Missouri of Ernst H. Franz, deceased, William E. Franz, Ehrhardt D. Franz II, Walter G. Franz II, an infant, Ernst H. Franz, Jr., an infant, Clara F. Burris, Ernestine F. Booher, Mildred Franz Luckey, Otto B. Franz, Charles E. Franz, Otto B. Franz, Jr., Norman L. Franz, Louise F. Meyer, an infant, Marie Franz, an infant, Gustav A. Franz, Richard K. Franz, an infant, Oscar E. Franz, an infant, Constance Franz, Kathryn Franz, Nellie Louise Franz, an infant, Amanda F. Wheeler, Henrietta A. Holdoway, Johanna F. Fiske, Rogers A. Fiske, Eugene W. Fiske, Wallace F. Fiske, Norma Fiske, and Adelaide (or Adelheide) F. Zimmermann, as defendants.

The amended bill of complaint alleges that the plaintiff is a citizen of the state of Kansas, that the defendant Gustavus A. Buder is a citizen of the state of Missouri, and that the defendant Gustav A. Franz is a citizen of either the state of Arizona or the state of California. It then alleges substantially the same facts as were set up in the original bill. It further alleges that the ten children of Ehrhardt D. Franz, deceased, and Sophie Franz, were Gustav A. Franz, Minna F. Kleinschmidt, Walter G. Franz, Ernst H. Franz, Otto B. Franz, Amanda F. Wheeler, Henrietta A. Holdoway, Johanna F. Fiske, Adelaide (or Adelheide) F. Zimmermann, and the plaintiff. It specifically alleges the citizenship of the defendants, and avers that they are citizens of states other than the state of Kansas, of which the plaintiff is a citizen and resident. It further alleges that the defendants, other than the defendant Gustavus A. Buder, are either heirs of and beneficiaries under the will of Ehrhardt D. Franz, deceased, or personal representatives of or heirs of deceased heirs of Ehrhardt D. Franz, deceased, and are all of the persons in being, natural and artificial, who are interested in the properties mentioned and referred to in the bill.

It prays that the defendants Gustavus A. Buder and Gustav A. Franz be required to make full disclosure and discovery of the nature, condition, extent, and value of the various properties referred to in the bill and in which the plaintiff claims a remainder interest; that they be restrained and enjoined from selling or otherwise disposing of any of the stocks referred to in the bill; that they be required to give adequate security for the protection of the present value of the plaintiff's vested remainder interest in and to one-tenth of such properties; and that the plaintiff's title to such remainder interest be adjudged, determined, and quieted as against the defendants.

On March 31, 1926, the plaintiff also filed an ancillary bill of complaint for an injunction against G. A. Franz and G. A. Buder as trustees for Sophie Franz, Sophie Franz, Gustav A. Franz, Gustavus A. Buder, Oscar E. Buder, Gustavus A. Buder, Jr., Aurelius W. Wenger, and Buder & Buder, a copartnership composed of the four defendants last above named. In the ancillary bill, plaintiff alleged that G. A. Franz and G. A. Buder as trustees for Sophie Franz, and Sophie Franz and Gustav A. Franz, by their attorneys, Buder & Buder, on February 3, 1926, instituted and filed a certain suit in equity in the circuit court of the city of St. Louis, Mo., against plaintiff and others, in which they set forth in substance the same matters and things as are set forth in the original bill and amended bill of complaint in this cause, and in which they seek and pray in substance the same relief which is sought and prayed for in said original and amended bill of complaint in this cause; that said suit was then pending; that process against the defendants therein, including this plaintiff, had been issued and served, and was returnable at the opening of the April term, A. D. 1926, of said circuit court, beginning on Monday, April 5, 1926; that unless enjoined, the plaintiffs therein would obtain orders, decrees, and judgments which would prejudiciously affect, impair, and defeat the jurisdiction of the trial court in the present cause. On April 3, 1926, plaintiff caused a copy of a notice, that on April 5, 1926, the plaintiff would move and apply for a preliminary injunction as prayed for in the ancillary bill, together with a copy of the ancillary bill, to be served upon the firm of Buder & Buder.

On April 7, 1926, the Mississippi Valley Trust Company, as administrator with the will annexed of the estate of Ernst H. Franz, deceased, filed an answer to the amended bill of complaint of the plaintiff and a cross-bill against the defendants Gustavus A. Buder and Gustav A. Franz, both individually and as trustees for Sophie Franz, in which it sets up substantially the same facts as are alleged in the amended bill of plaintiff. It prays that the defendants Gustavus A. Buder and Gustav A. Franz be required to give security adequate for the protection of the present value of the vested remainder interest of the estate of Ernst H. Franz, deceased, in and to one-tenth of the properties, and that its title to such vested remainder interest be adjudged, determined, and quieted.

On April 7, 1926, the Mississippi Valley Trust Company, as administrator with the will annexed of the estate of Walter G. Franz, deceased, filed a like answer and cross-bill in behalf of such estate.

On April 8, 1926, the trial court entered its order denying the prayer of the ancillary bill for a preliminary injunction. This is an appeal from that order.

Thereafter plaintiff filed a motion in this court to advance and hear the appeal. This matter came on for hearing on April 21, 1926, before Circuit Judges Sanborn and Van Valkenburgh. Upon such hearing, and on April 21, 1926, this court entered an order by which it advanced the appeal, set it for hearing on the merits on May 31, 1926, and enjoined the defendants to the ancillary bill from further prosecuting the action in the circuit court of the city of St. Louis until the further order of this court.

The defendants to the ancillary bill raise certain questions going to the jurisdiction of the court, which should be disposed of before the merits are considered.

They contend that no subpœna, summons, writ, or other legal process upon the ancillary bill was either issued or served upon the defendants thereto, except the notice referred to above, which was served upon the firm of Buder & Buder, and that therefore the trial court acquired no jurisdiction over the person of the defendants, and for that reason, properly denied the application for the temporary injunction.

Equity rule No. 73 and 38 Stat. 737 (U. S. Comp. St. § 1243a), provide that no preliminary injunction shall be granted without notice to the opposite party. Absent this statute and rule, a court of equity, in the exercise of a sound discretion, might properly grant a temporary injunction without notice and before the service of process. L. C. Smith & Bros. Typewriter Co. v. Riddlemoser Co., 126 Md. 186, 94 A. 655, 657; Powhatan Coal & Coke Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257, 258, 9 L. R. A. (N. S.) 1225; Perkins v. Collins, 3 N. J. Eq. 482; Buckley v. Corse, 1 N. J. Eq. 504; Ex parte Gounis, 304 Mo. 428, 263 S. W. 988; 32 C. J. p. 306, § 498. The rule and statute use the word "Notice." Neither contemplates the service of a subpœna in chancery.

The sufficiency of the notice, both in respect of time and contents under the particular circumstances of each case, is a matter for the determination of the trial court in the exercise of a sound discretion. Lawrence v. Bowman, 15 Fed. Cas. 21, No. 8,134; 32 C. J., p. 308, § 502. The service of a copy of the ancillary bill and the notice of the time and place at which the plaintiff would apply for a temporary injunction in the instant case, in our opinion, gave sufficient notice to the opposite parties. The defendant Gustavus A. Buder had already been served in the original proceeding and was before the court. As to him, service of the notice upon his attorneys was clearly sufficient. Gasquet v. Fidelity Trust & Safety Vault Co. (C. C. A. 5) 57 F. 80, 6 C. C. A. 253. The service upon the firm of Buder & Buder was sufficient as to the members of that firm. The other defendants to the ancillary bill were nonresidents and beyond the jurisdiction of the court, and had not been served with process. They were acting through the firm of Buder & Buder as their attorneys in the prosecution of the action in the state court. Under such circumstances, service of the notice upon their resident agents, who in their behalf were committing the acts sought to be enjoined, sufficiently met the requirements of equity rule 73 and section 1243a, supra....

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22 cases
  • Buder v. Fiske
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 19, 1949
    ...her remainder portion of these stock rights (Rec. pp. 303, 310). 4 "Alignment" is not used in the real legal sense (see Franz v. Franz, 8 Cir., 15 F.2d 797, 799-800) but as putting on one side those desiring similar results. 5 These rules are set forth and the authorities collected in a com......
  • In re Buder
    • United States
    • Missouri Supreme Court
    • January 7, 1949
    ...judgment, for rehearing, for new trial and to modify our opinion are denied and overruled. It is so ordered. --------- Notes: [1]Franz v. Franz, 15 F.2d 797; Franz Buder, 11 F.2d 854, 34 F.2d 353, 38 F.2d 605; Mississippi Valley Trust Co. v. Buder, 47 F.2d 507; Franz v. Mississippi Valley T......
  • In re Franz' Estate
    • United States
    • Missouri Supreme Court
    • December 3, 1940
  • In re Franz' Estate
    • United States
    • Missouri Supreme Court
    • April 20, 1939
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