Heiser v. Woodruff
| Decision Date | 22 June 1942 |
| Docket Number | No. 2414.,2414. |
| Citation | 128 F.2d 178 |
| Parties | HEISER et al. v. WOODRUFF et al. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Leonard J. Meyberg, of Los Angeles, Cal. (Rupert B. Turnbull, of Los Angeles, Cal., and T. G. Gibson, of Ardmore, Okl., on the brief), for appellants.
W. W. Potter, of Ardmore, Okl. (Thos. W. Champion, and Louis A. Fischl, all of Ardmore, Okl., on the brief), for appellees.
Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.
M. E. Heiser recovered judgment by default against Leonard J. Woodruff in the United States Court for Southern California; a motion to vacate and set aside such judgment and permit the defendant to answer was denied; and on June 29, 1939, an order was entered refusing to modify the judgment as to amount. Woodruff was adjudged a bankrupt in the United States Court for Eastern Oklahoma, and a trustee was appointed and qualified. Heiser filed in the bankruptcy proceeding a claim predicated upon the judgment rendered in California. The trustee, and certain persons claiming to be creditors of the bankrupt, including his wife, daughter, son, and mother, applied to the bankruptcy court for an order authorizing the trustee to proceed in the court in California to have the judgment vacated and set aside; the order was entered; and the trustee and the bankrupt moved the court in California to vacate the judgment, set aside the entry of default, and permit the filing of answers in the cause. By order entered September 26, 1939, the motion was denied; an appeal was taken from the orders of June 29 and September 26, respectively; the appeal from the first was dismissed; and the second was affirmed. Jackson v. Heiser, 9 Cir., 111 F.2d 310. The bankrupt and certain creditors, including the relatives previously mentioned, challenged in the bankruptcy court the claim of Heiser on the ground that the judgment was invalid, and in the hearing before the referee they sought to introduce evidence in support of the challenge. Heiser objected on the ground that it was an attempt to relitigate the questions which have been adjudicated in the court in California. The referee concluded that he could inquire into the judgment, and that the bankrupt and the creditors had a right to introduce the evidence.
Heiser then instituted this independent action in the United States Court for Eastern Oklahoma to enjoin the bankrupt and the creditors from proceeding further with their efforts before the referee. After notice and hearing, the court granted a temporary injunction and fixed the bond at $2,500. The bond was given, conditioned for payment of any damages which might be sustained by reason of the wrongful issuance of such injunction, including reasonable attorney's fees. The court subsequently determined that Heiser had an adequate remedy at law by proceeding in the cause in bankruptcy and by appealing or bringing the matter before the court by petition for review of the action of the referee; that the action of plaintiff in seeking the injunction amounted to an attempt to have a court of equity control the procedure of the bankruptcy court; and that a court of equity had no such power or jurisdiction. The injunction was dissolved and no appeal was taken. By motion the defendants requested the court to assess the damages arising out of the improvident issuance of the injunction. Plaintiff and the surety on the bond appeared, and after hearing the court awarded judgment against them for $1,518.42, composed of three items, $1,000 for which the defendants had become liable to their attorneys for returning to Los Angeles, California, to complete the taking of depositions in the proceeding in bankruptcy, $500 which they had paid an attorney in San Francisco, California, for the taking of depositions there in the proceeding in bankruptcy, and $18.12 representing the cost of certain depositions taken in connection with the matter of the injunction. The appeal is from that judgment.
With an exception not material here, Title 28 U.S.C.A. § 382 provides that no restraining order or...
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United States Steel Corp. v. United Mine Wkrs. of Amer.
...for the proposition that an injunction bond for costs and damages will not support a recovery of attorneys' fees is Heiser v. Woodruff, 128 F.2d 178 (10th Cir. 1942). Heiser relied upon Tullock v. Mulvane, 184 U.S. 497, 22 S.Ct. 372, 46 L.Ed. 657 (1902), and Oelrichs v. Spain, 82 U.S. 211, ......
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...Lindeberg v. Howard, 9 Cir., 1906, 146 F. 467, and to Section 382 itself by two courts which have expressly considered the question, Heiser v. Woodruff,* 10 Cir., 1942, 128 F.2d 178, 180; Salvage Process Corp. v. Acme Co. supra. Moreover, the rule has also been applied without specific refe......
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International L. Garment Work. Un. v. Donnelly G. Co.
...point are of this character. For example, see United States v. Hartford Accident & Indemnity Co., 2 Cir., 117 F.2d 503; Heiser v. Woodruff, 10 Cir., 128 F.2d 178. The rule can not be applied in the present case. The issue before the courts on both the temporary restraining order and the tem......
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