Hertz v. Record Publishing Company of Erie

• Decision Date: 05 January 1955
• Docket Number: No. 11327.,11327.
• Citation: 219 F.2d 397
• Parties: David Ralph HERTZ and Samuel A. Horvitz v. RECORD PUBLISHING COMPANY OF ERIE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

219 F.2d 397 (1955)

David Ralph HERTZ and Samuel A. Horvitz v. RECORD PUBLISHING COMPANY OF ERIE, Appellant.

No. 11327.

United States Court of Appeals, Third Circuit.

Argued October 8, 1954.

Decided January 5, 1955.

Rehearing Denied February 2, 1955.

Writ of Certiorari Denied April 18, 1955.

William W. Knox, Conrad A. Pearson, Erie, Pa., for appellant.

Charles E. Kenworthey, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellees.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

Writ of Certiorari Denied April 18, 1955. See 75 S.Ct. 601.

STALEY, Circuit Judge.

Plaintiffs, David Ralph Hertz and Samuel A. Horvitz, citizens of Ohio, brought an action in the United States District Court for the Western District of Pennsylvania against the Record Publishing Company of Erie, a Pennsylvania corporation. Plaintiffs alleged that Hertz was the owner of 150 shares of defendant corporation's stock which he had agreed to sell to Horvitz and that the corporation had refused, after proper demand, to cancel Hertz's stock certificate and issue a new one to Horvitz.

The complaint asked for an order directing the corporation to issue the new certificate and "for such other orders, judgments and relief as may come to be suitable and proper * * *."

The corporation's answer denied that Hertz was the owner of the 150 shares of stock or that he was in a position to transfer title thereto. (The answer set forth other defenses which will be considered later.) After the pleadings were closed, the corporation filed a suggestion of lack of jurisdiction. The district court held that its jurisdiction was proper.¹

On this appeal, the corporation renews the jurisdictional objection, contending that the relief sought by the plaintiffs was in the nature of an original writ of mandamus and that a federal district court has no jurisdiction to issue writs of mandamus except in aid of its jurisdiction independently acquired.

The Supreme Court long ago decided that the grant of authority to the federal courts by Congress to hear suits at common law or at equity did not include authority to issue an original writ of mandamus, but that a federal court could issue the writ in aid of its proper jurisdiction to hear suits at law or in equity. McIntire v. Wood, 1813, 7 Cranch 504, 3 L.Ed. 420; Rosenbaum v. Bauer, 1887, 120 U.S. 450, 7 S.Ct. 633, 30 L.Ed. 743; Covington & C. Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111. Assuming, without deciding, that the requested order directing the corporation to issue a new certificate was a writ of mandamus,² the issuance of the writ here was clearly in aid of the court's proper jurisdiction to hear a case or controversy in equity. The plaintiffs alleged that title to the stock was in Hertz and requested all appropriate relief. In view of the defendant's denial of Hertz's title, it was proper for the district court to treat the case as one in which a determination of title to stock was requested.³

The next question raised by the corporation is whether a determination made by a Pennsylvania state court six years prior to the present decision, that Hertz was not the sole owner of the 150 shares of stock, was res judicata, precluding a decision by the federal district court that Hertz was the owner of the stock.

Hertz purchased the corporation's stock in 1946 and was issued a stock certificate in his own name. Subsequent to the purchase, he made a demand upon the corporation for his right to inspect certain corporate books and records. The corporation refused to permit the inspection, whereupon Hertz, in early 1947, brought an action in the Court of Common Pleas of Erie County, Pennsylvania, requesting that the corporation be directed to permit him to inspect the books and records. The jury rendered a verdict for the defendant, and, in response to specific questions from the judge, answered that the plaintiff was not the sole and absolute owner of the stock in his own right and that the requested inspection of the corporation's books was for an improper purpose.

Assuming that the specific determinations made by the jury are res judicata between Hertz and the corporation, the only relevant determination was that on January 21, 1948, Hertz was not the sole owner of the stock in his own right. That which the district court decided was that Hertz was the sole owner of the stock on June 1, 1949. These two determinations are not inconsistent. The issue decided in the state court was not the same issue decided in the district court, and thus the principles of res judicata are not applicable.

The corporation points out that under Pennsylvania law there is a presumption that a status or relationship once shown to exist is presumed to continue in the absence of evidence to the contrary.⁴ This presumption of law, however, disappears when contrary evidence of the fact in issue is introduced. See Morse Boulger Destructor Co. v. Arnoni, 1954, 376 Pa. 57, 101 A.2d 705; 9 Wigmore, Evidence § 2491 (3d ed. 1940). In the present case, the evidence presented was sufficient to warrant a finding that Hertz was the sole owner of the stock on June 1, 1949, and on that date transferred that ownership to Horvitz.

The last point raised on this appeal by the corporation is that the district court should have dismissed the complaint because indispensable partie...