Huff v. Bidwell
| Decision Date | 26 February 1907 |
| Docket Number | 1,566. |
| Citation | 151 F. 563 |
| Parties | HUFF et al. v. BIDWELL et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
A. L Miller, T. S. Felder, Nathaniel E. Harris, Minter Wimberly and P. S. Hill, for appellants.
Jno. A L. Smith, Marion W. Harris, Isaac Hardeman, Geo. S. Jones, W. G. Smith, John I. Hall, Olin J. Wimberly, and James L. Anderson, for appellees.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
1. The appellants challenge the jurisdiction of the Circuit Court.
The suit is by William L. Bidwell, a citizen of the state of Connecticut, and Franklin E. Woodward, a citizen of the state of New York, against W. A. Huff, Walter Huff, Edison Huff, and A. P. Herrington, all citizens of the state of Georgia, and the mayor and council of the city of Macon, a Georgia municipal corporation. It is a creditors' bill, the complainants being judgment creditors of W. A. Huff. The judgment in favor of Woodward, the collection of which is sought in the suit, is for $2,400 principal, and $105.72, interest to December 11, 1897. The judgment in favor of Bidwell is for $1,714.12, principal, and $115.41 interest and costs. The suit is by citizens of Connecticut and New York against citizens of Georgia and a Georgia municipal corporation, and the claim of one of the plaintiffs exceeds the jurisdictional amount of $2,000. The value of the property of the defendant W. A. Huff sought to be condemned to the payment of his debts greatly exceeds $2,000 in value. These facts confer jurisdiction on the Circuit Court notwithstanding the judgment or claim of one of the plaintiffs is less than $2,000. If the bill had been filed only by the plaintiff who had the judgment which exceeded $2,000, it would have clearly shown a claim for the jurisdictional amount, and, being a creditors' bill, it was necessarily a suit for the plaintiff and all other creditors with like claims, regardless of the amount of the claim, who chose to join in the litigation. Bidwell, although his claim was for less than $2,000, could have intervened in the suit and presented his claim and have been granted relief on his intervening petition. National Bank of Commerce v. Allen, 90 F. 545, 33 C.C.A. 169. We do not think that the jurisdiction of the court is defeated by his joining as plaintiff instead of intervening after the bill was filed.
It is insisted by the learned counsel for the appellees that, as this is a creditors' bill, the value of the estate to be condemned and distributed should be looked to as showing the jurisdictional amount, and that the Circuit Court would have jurisdiction if none of the plaintiffs' claims exceeded $2,000; that the amount involved is the value of the property sought to be condemned. Handley v. Stutz, 137 U.S. 366, 11 Sup.Ct. 117, 34 L.Ed. 706; Marshall v. Holmes, 141 U.S. 589, 12 Sup.Ct. 62, 35 L.Ed. 870, and other cases are cited as sustaining this view. We need not decide that contention, as in this case we hold, for reasons already given, that the Circuit Court had jurisdiction.
2. It is also contended by the appellant that the Circuit Court had no jurisdiction in equity of the case made by the bill. The right of a judgment creditor to file a bill in behalf of himself and other judgment creditors who may elect to join in the suit and contribute to the expense has been recognized from time immemorial by courts of equity. Usually such bills, to show the inefficacy of the remedy at law, allege the issuance of an execution on the judgment and a return of nulla bona. Such averments are made as to the judgments in this case. It is averred and proved by the defense, however, that the returns were made by the sheriff under the directions of the attorneys of the judgment creditors. The defendant in the judgment owned much valuable real estate, but it was so incumbered by tax liens, tax deeds, and mortgages that it does not appear probable that it could have been sold advantageously without an adjustment of the priorities and rights of the several lienholders. In Georgia, judgments are a lien on the property of the defendant, and we have heretofore held that 'the issuance of an execution is not necessary to entitle a judgment creditor to maintain a suit in equity to subject property fraudulently transferred by the debtor, where, by statute, the judgment is made a lien on all the defendant's property. ' Lazarus Jewelry Co. v. Steinhardt, 112 F. 614, 50 C.C.A. 393. The same principle is applicable where there is any other real impediment to the enforcement of the lien at law, the defendant having no property subject to execution to satisfy the judgment, except that so incumbered. In this case, in view of all the facts, including the incumbrances on the property and the return indorsed on the executions, we cannot doubt that the learned Circuit Court decided correctly that the case was one of equitable jurisdiction. There seemes to be no doubt about the jurisdiction of a court of equity to enforce equitable judgment liens upon real estate at the suit of the judgment creditor. 1 Pomeroy, Eq. Jur. (3d Ed.) Sec. 171, p. 203.
3. The bill in this cause was filed August 5, 1899, and on that day the Circuit Court, without notice to the defendants in the suit, appointed a 'temporary' receiver to take possession of and to hold and manage 'the property mentioned and described in the bill,' referring to the property of the defendants, being certain lots in the city of Macon, and 305 acres of land in Bibb county, Ga. We find no facts stated in the bill or shown by the record that made it proper to appoint a receiver without notice to the defendants. A court of equity has the power to make such appointment without notice, but, as has often been said, such power should never be exercised except in a clear case of imperious necessity, when the rights of the plaintiff and the relief to which he shows himself entitled can be secured and protected in no other way. Joseph Dry Goods Co. v Hecht, 120 F. 760, 764, 57 C.C.A. 64. More than two years afterwards, on May 31, 1902, the case came on to be heard upon application to...
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