Independence Shares Corporation v. Deckert, No. 7146
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Writing for the Court | BIGGS, CLARK, and JONES, Circuit |
| Citation | 108 F.2d 51 |
| Parties | INDEPENDENCE SHARES CORPORATION et al. v. DECKERT et al. PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES v. SAME. |
| Docket Number | 7147.,No. 7146 |
| Decision Date | 20 December 1939 |
108 F.2d 51 (1939)
INDEPENDENCE SHARES CORPORATION et al.
v.
DECKERT et al. PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES
v.
SAME.
Nos. 7146, 7147.
Circuit Court of Appeals, Third Circuit.
November 11, 1939.
Rehearing Denied December 20, 1939.
Walter Biddle Saul, Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., for appellant Pennsylvania Co. for Insurances on Lives and Granting Annuities.
Robert F. Irwin, Jr., George M. Kevlin, Joseph Whetstone, Harris J. Latta, Jr., Donahue, Irwin, Merritt & Gest, and Townsend, Elliott & Munson, all of Philadelphia, Pa., for appellants Independence Shares Corporation and others.
Harry Shapiro, of Philadelphia, Pa., for appellees.
Before BIGGS, CLARK, and JONES, Circuit Judges.
BIGGS, Circuit Judge.
A bill of complaint was filed in the court below by the appellees against the appellant, Independence Shares Corporation, a Pennsylvania corporation, and certain affiliated companies. The appellees purchased Capital Savings Plan Contract Certificates issued by Capital Savings Plan, Inc., and have alleged in their bill of complaint that these were sold to them by the fraud and misrepresentations of Capital Savings Plan, Inc. by the use and means of instruments of transportation or communication in interstate commerce and by the use of the mails. At the time of the sales, Independence Shares Corporation was a wholly owned subsidiary of Capital Savings Plan, Inc. Upon December 31, 1938, however, Capital Savings Plan, Inc. and Independence Shares, Inc. merged and the appellant, the resultant corporation, acquired all of the assets and assumed all of the liabilities of Capital Savings Plan, Inc.
The bill of complaint also alleges that the assets of Independence Shares Corporation are being wasted and dissipated and that that corporation is insolvent. The bill prays the appointment of a receiver for the assets of the corporation who shall ascertain and adjudicate the claims of creditors and shall liquidate and dissolve the company. The complaint also asks for certain injunctive relief which we will discuss at a later point in this opinion. The bill is cast in the form of a class suit brought by the appellees not only on their own behalf but also for the benefit of all certificate holders similarly situated.
The court below denied motions to dismiss the bill of complaint made upon the ground that it stated no cause of action and that the court was without jurisdiction, and referred the case to a master to hear and report upon the question of solvency or insolvency of the appellant. This order, 27 F.Supp. 763, filed May 18, 1939, has been appealed from by Independence Shares Corporation.
The contract certificates purchased by the appellees called for payments to be made by the subscribers. These payments were made by the subscribers to the other appellant, The Pennsylvania Company for Insurances on Lives and Granting of Annuities as trustee. The Pennsylvania Company made certain deductions from the sums paid to it and invested the balance as directed by Independence Shares Corporation in Independence Trust Shares for the accounts of the respective certificate holders. Independence Shares Corporation created these trust shares by itself purchasing the shares of stock of certain specified corporations. The trust shares represent interests in the stocks so bought. The Pennsylvania Company in turn purchased aliquot portions of the trust shares and holds its purchases as we have stated for the benefit of the accounts of the certificate holders. At the time of the filing of the bill of complaint a sum of money representing charges made by the appellant for the reinvestment of funds was in the possession of The Pennsylvania Company. By an order entered June 2, 1939, the court below enjoined The Pennsylvania Company from paying over the sum referred to to Independence Shares Corporation or otherwise disposing of it during the pendency of the action. The Pennsylvania Company has appealed from this order.
Since the two appeals grow out of the same set of facts, we will dispose of them in one opinion.
The complainants with one exception are citizens of Pennsylvania. The jurisdiction of the court below cannot be sustained therefore upon diversity of citizenship. Lee v. Lehigh Valley Coal Company, 267 U.S. 542, 45 S.Ct. 385, 69 L.Ed. 782; Salem Trust Co. v. Manufacturers' Finance Company, 264 U.S. 182, 44 S.Ct. 266, 68 L.Ed. 628, 31 A.L.R. 867; Osthaus v. Button, 3 Cir., 70 F.2d 392. Nor does the amount in controversy exceed the sum of $3,000. Section 24(1) of the Judicial Code as amended, 28 U.S.C.A. § 41(1). The claims of the appellees may not be aggregated and the claim of no one appellee amounts to more than $2,000. Moore's Federal Practice, Vol. 2, Section 23.08; Pinel v. Pinel, 240 U.S. 594, 36 S.Ct. 416, 60 L.Ed....
To continue reading
Request your trial
-
Daar v. Yellow Cab Co.
...Cal.2d 709] 503, 528; Weeks v. Bareco Oil Co. (7th Cir.1941) 125 F.2d 84, 88, 91; Independence Shares Corporation v. Deckert (3d Cir.1939) 108 F.2d 51, 55, reversed on other grounds, Deckert v. Independence Corp. (1940) 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189.) It is noteworthy that in 196......
-
Zahn v. International Paper Company 8212 888, No. 72
...F.2d 969 (C.A.10, 1942); Central Mexico Light & Power Co. v. Munch, 116 F.2d 85 (C.A.2, 1940); Independence Shares Corp. v. Deckert, 108 F.2d 51, 53 (C.A.3, 1939), rev'd on other grounds, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940); Ames v. Chestnut Knolls, Inc., 159 F.Supp. 791 (De......
-
Snyder v. Harris Gas Service Company v. Coburn, Nos. 109
...51 Va.L.Rev. 629, n. 3 (1965). 16. A notable example is Deckert v. Independence Shares Corp., 27 F.Supp. 763 (D.C.E.D.Pa.), rev'd, 108 F.2d 51 (C.A.3d Cir. 1939), rev'd, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), on remand, 39 F.Supp. 592 (D.C.E.D.Pa.), rev'd sub nom. Pennsylvania Co.......
-
Union Carbide and Carbon Corporation v. Nisley, No. 6319-6322.
...Cir., 194 F.2d 737, 743; Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85; Independence Shares Corp. v. Deckert, 3 Cir., 108 F.2d 51, 55; California Apparel Creators v. Wieder, 2 Cir., 162 F.2d 893, 174 A.L.R. 481; 3 Moore ? 23.10; 2 Barron & Holtzoff, Federal Practice......
-
Daar v. Yellow Cab Co.
...Cal.2d 709] 503, 528; Weeks v. Bareco Oil Co. (7th Cir.1941) 125 F.2d 84, 88, 91; Independence Shares Corporation v. Deckert (3d Cir.1939) 108 F.2d 51, 55, reversed on other grounds, Deckert v. Independence Corp. (1940) 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189.) It is noteworthy that in 196......
-
Zahn v. International Paper Company 8212 888, No. 72
...127 F.2d 969 (C.A.10, 1942); Central Mexico Light & Power Co. v. Munch, 116 F.2d 85 (C.A.2, 1940); Independence Shares Corp. v. Deckert, 108 F.2d 51, 53 (C.A.3, 1939), rev'd on other grounds, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940); Ames v. Chestnut Knolls, Inc., 159 F.Supp. 791 (De......
-
Snyder v. Harris Gas Service Company v. Coburn, Nos. 109
...51 Va.L.Rev. 629, n. 3 (1965). 16. A notable example is Deckert v. Independence Shares Corp., 27 F.Supp. 763 (D.C.E.D.Pa.), rev'd, 108 F.2d 51 (C.A.3d Cir. 1939), rev'd, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940), on remand, 39 F.Supp. 592 (D.C.E.D.Pa.), rev'd sub nom. Pennsylvania Co.......
-
Union Carbide and Carbon Corporation v. Nisley, No. 6319-6322.
...7 Cir., 194 F.2d 737, 743; Central Mexico Light & Power Co. v. Munch, 2 Cir., 116 F.2d 85; Independence Shares Corp. v. Deckert, 3 Cir., 108 F.2d 51, 55; California Apparel Creators v. Wieder, 2 Cir., 162 F.2d 893, 174 A.L.R. 481; 3 Moore ? 23.10; 2 Barron & Holtzoff, Federal Practice and P......