Hanssen v. Pusey & Jones Co., 429.

• Decision Date: 02 February 1923
• Docket Number: 429.
• Citation: 286 F. 707
• Parties: HANSSEN v. PUSEY & JONES CO.
• Court: U.S. District Court — District of Delaware

286 F. 707

HANSSEN v. PUSEY & JONES CO.

No. 429.

United States District Court, D. Delaware.

February 2, 1923

William H. Button, of New York City, and John P. Nields and William G. Mahaffy, both of Wilmington, Del., for plaintiff.

Josiah Marvel, of Wilmington, Del., for defendant.

MORRIS District Judge.

This suit, instituted by Hans Karluf Hanssen against the Pusey &amp Jones Company for the appointment of a receiver for the defendant, is now upon final hearing, and, by stipulation of the parties, upon the same record upon which receivers pendente lite were appointed. (D.C.) 276 F. 296. After the affirmance by the Court of Appeals of the interlocutory order appointing the receivers pendente lite (279 F. 488), the cause was set down for final hearing in open court on September 14, 1922. Upon that day, on application of the defendant, the following order, consented to by counsel for the plaintiff, defendant, and interveners, was entered:

'And now, this 14th day of September, A.D. 1922, this cause came on for the taking of proofs on final hearing in the presence of John P. Nields, William H. Button, and William G. Mahaffy, solicitors and counsel for the plaintiff, Hans Karluf Hanssen and the nine Norwegian interveners, Lindley M. Garrison and Josiah Marvel, solicitors and counsel for the defendant, the Pusey & Jones Company, George Weems Williams and Robert H. Richards, solicitors and counsel for the Baltimore Dry Docks & Shipbuilding Company, Josiah Stryker and James H. Hughes, Jr., solicitors and counsel for the United States Shipping Board Emergency Fleet Corporation, and it appearing to the court from statements of counsel for the defendant that the latter intends applying to this court for the discharge of the temporary receivers and the return of the property to the defendant upon showing to the court the propriety of such action, and that for the purpose of making and disposing of such application, counsel for the defendant desires a reasonable adjournment of this final hearing and counsel for the other parties being agreeable to such adjournment upon the conditions named in this order:

'It is ordered, adjudged, and decreed by the court that the final hearing of this cause be and the same hereby is adjourned until a later day to be fixed; that if defendant presents within 60 days from the date hereof an application to this court to discharge the temporary receivers, the court will promptly hear and dispose of the same; and in the event of refusal to grant such application, may set the final hearing of this cause at any time five days after the date of the order of such refusal; and upon such final hearing all parties consent to the submission to the court, all pleadings, affidavits, and exhibits heretofore presented in this court in any manner and without the introduction or proffer of any further or other evidence. The said affidavits and exhibits to be considered as if presented in open court and testified to or identified by present witnesses.

'If the defendant within the 60 days above specified fails to present such application for the discharge of the temporary receivers, then the court may similarly fix the time for final hearing at any time 5 days after the expiration of the said 60 days within which the defendant should have presented their application for a discharge, and upon such final hearing all parties consent to the submission to the court, all pleadings, affidavits, and exhibits heretofore presented in this court in any manner, and without the introduction or proffer of any further or other evidence. The said affidavits and exhibits to be considered as if presented in open court and testified to or identified by present witnesses.

(Signed) Hugh M. Morris, Judge.

'Consented to:

'(Signed) John P. Nields,

'Wm. H. Button,

'Wm. G. Mahaffy,

'Solicitors for Plaintiff and the Nine Norwegian Interveners.

'(Signed) Lindley M. Garrison,

'Josiah Marvel,

'Solicitors for Defendant.

'(Signed) George Weems Williams,

'Robt. H. Richards,

'Solicitors for Baltimore Dry Docks & Shipbuilding Company.

'(Signed) Josiah Stryker,

'Of Counsel, U.S. Shipping Board E.F.C.

'(Signed) James H. Hughes, Jr., U.S. Atty.

'Solicitor for the United States Shipping Board Emergency Fleet Corp.'

On November 13th, no application for the discharge of the receivers having been made in the interim, upon motion of defendant and written consent of all the parties who had consented to the order of September 14th, a further order was made, modifying the order of September 14th by extending for a period of 60 days from November 13th, under the terms and conditions prescribed in the order of September 14th, the time for the defendant to present an application to discharge the receivers. No application for the discharge of the receivers was made during the extended period, and an order in conformity with the terms of the prior consent orders was entered, setting the cause down for final hearing on January 17th last.

At the hearing then had the defendant, contending that a writ of certiorari is of itself and propria vigore a supersedeas, and stays all proceedings in the Circuit Court of Appeals and in this court, asked leave to file an affidavit and exhibits then presented, setting forth that on the 3d day of October, 1922, the defendant submitted to the Supreme Court of the United States a petition for a writ of certiorari in this cause, addressed to the Judges of the Circuit Court of Appeals for this Circuit; that the writ of certiorari was...