Harrison v. Prather

• Decision Date: 21 November 1968
• Docket Number: No. 25636.,25636.
• Citation: 404 F.2d 267
• Parties: Gerard A. HARRISON and Harrison Ranch, Inc., Appellants, v. Carey PRATHER and William Prather, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

404 F.2d 267 (1968)

Gerard A. HARRISON and Harrison Ranch, Inc., Appellants, v. Carey PRATHER and William Prather, Appellees.

No. 25636.

United States Court of Appeals Fifth Circuit.

October 28, 1968.

Rehearing Denied November 21, 1968.

George F. Woodliff, Heidelberg, Woodliff & Franks, Jackson, Miss., Douglas C. Wynn, Greenville, Miss., Fred W. Moore, Houston, Tex., for appellants.

Philip Mansour, Greenville, Miss., Taylor Webb, Webb & Webb, Leland, Miss., for appellees.

Before GOLDBERG, and AINSWORTH, Circuit Judges, and SPEARS, District Judge.

PER CURIAM:

The judgment of the District Court dismissing this suit as to the defendant, William Prather, is affirmed for the reasons well expressed in the written opinion of Judge Claude F. Clayton (unpublished and therefore appended hereto) insofar as those reasons pertain to the issues on appeal in this matter.

We have given careful consideration to the supplemental memorandum of appellants in which they attempt to obtain reversal of the District Court's dismissal of the suit against defendant William Prather. They assert that service of process against the nonresident, William Prather, under 28 U.S.C. § 1655 is proper because the complaint as amended seeks to establish claims not only to real property, but also to personal property and to an accounting involving funds or personal property within the district. They contend that since William Prather filed a disclaimer only with reference to real property (i. e. the Woollard Tract), and none pertaining to personal property, Section 1655 authorizes service of process in the Mississippi Federal Court suit against the absent Louisiana resident, William Prather, under the allegations of their pleadings. But the District Judge found — and we agree after considering the original and amended complaint — that the suit seeks to recover damages (trebled under 15 U.S.C. § 15) for an antitrust violation in the alleged unlawful interference with the interstate business of plaintiffs, and also seeks a partition in kind of the Woollard Tract in Mississippi. However, plaintiffs are not attempting here to enforce a lien or claim to personal property but are alleging a claim for damages for conversion of personal property¹ and for other alleged unlawful activities of defendants. Section 1655, however, is intended to afford relief against property and not to an in personam judgment against the nonresident defendant. A mere in personam claim will not suffice to support service under the statute. 2 Moore, Federal Practice ¶ 4.34 2, §§ 5, 6 and 8, pp. 1251-1252; Stewart v. United States, 5 Cir., 1957, 242 F.2d 49, 52. See also Dry Clime Lamp Corporation v. Edwards, 5 Cir., 1968, 389 F.2d 590, 597.

Plaintiffs state in their first amended original complaint, paragraph XV:

"This suit is not only for damages on account of a tort, that is an unlawful conspiracy and interference with plaintiffs\' business and activities in Washington County, Mississippi, but also it is a local action in accordance with the provisions 1655 of Title 28 U.S.C.A., that is, it is an action for partition in kind and to remove cloud from title. * * * Plaintiffs and defendant Carey Prather are in possession of the said Woollard Tract which is susceptable sic to fair partition in kind by proper agreement or decision and survey."

In the prayer of the amended complaint plaintiffs seek judgment against defendants jointly and severally for a partition in kind of the Woollard Tract, for $678,825 actual damages trebled and $50,000 exemplary damages, and "judgment for an accounting of defendants in order to make such proper accounting of any property belonging to plaintiffs in accordance with the orders of this court; * * *." Under the circumstances of this case we agree with the District Judge that use of Section 1655 to effect service against the nonresident defendant, William Prather, is not appropriate, and suit as to him was properly dismissed.

Affirmed.²

APPENDIX

CLAYTON, District Judge:

This is an action based on diversity of citizenship alleging fraudulent conspiracy on the part of the defendants Carey Prather and William Prather. Plaintiffs seek to recover treble damages in accordance with 15 United States Code § 15 and in addition seek to have a plot of land known as the "Woollard Tract" partitioned.

The amended complaint^1a (hereafter referred to as the complaint) alleges generally that during the year 1964 defendants, Carey Prather and William Prather, brothers, entered into a fraudulent conspiracy whereby they intended to fraudulently acquire a greater part of the real property known as the "Woollard Tract", which is located in Washington County, Mississippi, by damaging the plaintiff's credit. It is alleged that a one half interest in this tract was conveyed originally to the plaintiff, Harrison, and Robert J. Prevot, on January 10, 1963. Subsequently, Prevot is alleged to have conveyed his interest to the defendant Carey Prather. Carey Prather is alleged to have conveyed a portion of his interest to the defendant William Prather who in turn purported to convey said interest back unto him. The complaint further alleges that on the present record, it is uncertain as to the ownership of the defendants' interest in the "Woollard Tract".

On January 10, 1966, the court, pursuant to 28 U.S.C. § 1655 recognizing that the plaintiff sought to cause a partition in the "Woollard Tract," that the defendant William Prather was not a habitant of Mississippi and could not be found here, and had not voluntarily appeared in this action, directed the defendant William Prather, to appear and plead by a day certain. It was further provided that if the defendant, William Prather, did not appear or plead within the time specified by the court, jurisdiction of this action would be entertained in the same manner as if said defendant had been properly served with process within this federal court district. This order was served on William Prather in Louisiana.

On February 2, 1966, the defendants filed a motion to dismiss. The defendant, William Prather, alternatively moved to quash the return of service as to him on the grounds that he is a resident of Louisiana and has no lien or claim or interest in any lands located in the Northern District of Mississippi, that he was not properly served, and is not subject to the process of this court. William Prather also alleges that this action is wrongfully laid under § 1655. Additionally, both defendants allege that the complaint fails to state a claim upon which relief can be granted and there is no diversity of citizenship as is required. Accompanying this motion, the defendant, William Prather, filed an affidavit in which he alleged that he has no claim or interest whatsoever in any of the land which is the subject matter of this suit.

On February 5, 1966, the defendant, Carey Prather, notified the plaintiff that it would take his deposition on oral examination. On February 14, 1966, the plaintiff filed a motion to have this notice stricken. Plaintiff also sought a ruling from the court that all defendants have entered a general appearance by filing their motion to dismiss. This motion, insofar as it sought to strike the notice of the taking of plaintiff's deposition was sustained. All other matters presented by the motion were expressly reserved for later disposition.

Subsequently, on October 3, 1966, the plaintiff noticed that it would take the deposition on oral examination of the defendant, Carey Prather, and on October 4, 1966, the defendant, Carey Prather, noticed that he would take the deposition of the plaintiff. Pursuant to this notice, the plaintiff was directed by a subpoena duces tecum served by the attorney for the defendants upon one of plaintiffs' attorneys to bring a series of documents and writings.

The record shows also that on October 4, 1966, the defendant, Carey Prather, was served with a subpoena duces tecum ordering him to produce various writings and other instruments. These writings were to be produced on the same date and at the same time as said defendant was to be deposed. On October 7, 1966, said defendant, Carey Prather, moved to quash and/or modify this subpoena duces tecum served on him alleging that there was a failure to comply with provisions of Rule 34, Federal Rules of Civil Procedure,² that many of the writings ordered to be produced were not in the possession or the control of the defendant, and that many of the writings in his control or possession were public record and readily available to the plaintiff.

On October 11, 1966, the defendant, Carey Prather, filed a motion alleging that the plaintiff had failed to comply with the subpoena duces tecum served upon him. Said defendant also alleged in his motion that the plaintiff refused at the taking of his deposition to answer questions concerning the names and addresses of witnesses who would have information relevant to the issues in this case. Therefore, plaintiff moved to have the court direct the plaintiff to produce the records demanded and to respond to all questions propounded to him at the taking of his deposition. The defendant also sought to have the court order the plaintiff to pay the cost of procuring this relief pursuant to Rule 37 Federal Rules of Civil Procedure.

On October 11, 1966, the court stayed all further proceedings in this cause until it could dispose of the motions and other matters pending herein. On 29 November, 1966, the plaintiffs moved to amend the court's stay. The aforementioned motion to dismiss of the defendants, as well as the other pending motions (under the pragmatic assumption that said motion to dismiss would be overruled) were submitted on briefs and affidavits and are now before the court for disposition.

I.

As stated, in addition to the recovery for money damages, the plaintiff seeks in this action to have the "Woollard Tract" partitioned as between him and the defendants. The term ...