Frye-Bruhn Co. v. Meyer

• Decision Date: 02 February 1903
• Docket Number: 842.
• Citation: 121 F. 533
• Parties: FRYE-BRUHN CO. v. MEYER.
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 533

FRYE-BRUHN CO. v. MEYER.

No. 842.

United States Court of Appeals, Ninth Circuit.

February 2, 1903

S. H Piles, George Donworth, and James B. Howe (Wynn &amp Shackleford, of counsel), for appellant.

Malony & Cobb, for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW Circuit Judge.

This is a suit in equity commenced by the Frye-Bruhn Company, a corporation, against Herman Meyer in the United States District Court for the District of Alaska, Division No. 1, on the 21st day of March, 1902. The bill of complaint alleged the recovery of a judgment by Charles H. Frye against the defendant, Herman Meyer, in the superior court of Kings county, in the state of Washington, on the 28th day of June 1889, for $3,140.10, and costs; the issuance of an execution on this judgment against the property of Herman Meyer directed to the sheriff of Kings county, state of Washington and the return of the execution by the sheriff unsatisfied; and, further, that no property of the defendant had been found. The bill further alleged the assignment of the judgment to plaintiff on the 27th day of January, 1900; the commencement of an action in the District Court of Alaska by Herman Meyer against the Frye-Bruhn Company in 1899; and the recovery of a judgment against the defendant in that action on the 21st day of March, 1902, for the sum of 45 per cent. of $6,295, after the payment of the costs of the action. The bill alleged that there was money in the hands of the clerk of the court in which the last-named judgment was obtained, that this money was paid to the clerk of the court by the Frye-Bruhn Company, that the same was sufficient to pay the judgment in that court in favor of Meyer, and that the court had ordered that this money be applied on said judgment. The bill alleged that the plaintiff would be unable to collect the judgment secured in the superior court of Kings county in the state of Washington against Meyer; that Meyer was either insolvent, and had no property out of which to satisfy said judgment, or had his property secreted and in the name of other persons in order to defeat the rights of the plaintiff; that Meyer had threatened to, and would, unless restrained by the court, have an execution issued in the case in which he had recovered the aforesaid judgment, and have the property of plaintiff levied upon to satisfy that judgment and costs, to the great and irreparable damage of plaintiff; that Meyer had also threatened to assign his judgment to other persons in order to defeat the plaintiff's claim; that such action would leave the plaintiff without any remedy for the collection of its judgment secured in the state of Washington unless the defendant, Meyer, be restrained by an order of the court until the plaintiff's rights were established, and its judgment in the state of Washington made an offset to defendant's judgment against plaintiff in the Alaska court. The bill was supported by the affidavit of counsel for plaintiff setting forth the same facts alleged in the bill. The court thereupon issued an order directed to the defendant to show cause why an injunction should not issue as prayed for in the bill. The order also provided that in the meantime the defendant should be restrained from assigning, selling, or negotiating the said judgment recovered against plaintiff, and from collecting any money thereon from the clerk of the court; that all proceedings under said judgment should be stayed, and the clerk of the court ordered not to pay out any money upon said judgment in said cause, but to hold and retain the same in his possession until the further order of the court. On motion of counsel...