Jack v. Armour & Co.

• Decision Date: 20 July 1923
• Docket Number: 6207.
• Citation: 291 F. 741
• Parties: JACK v. ARMOUR & CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

291 F. 741

JACK v. ARMOUR & CO. et al.

No. 6207.

United States Court of Appeals, Eighth Circuit.

July 20, 1923

F. L Bollen, of Lincoln, Neb. (C. A. Sorensen, of Lincoln, Neb on the brief), for plaintiff in error.

J. A C. Kennedy, of Omaha, Neb. (Kennedy, Holland, DeLacy &amp McLaughlin, of Omaha, Neb., on the brief), for defendants in error.

Before SANBORN, Circuit Judge and BOOTH and FARIS, District Judges.

FARIS District Judge.

Plaintiff in error, as plaintiff below, sued defendants in error, at law, for treble damages averred to have accrued to him from defendants, by reason of alleged violations by defendants, of the provisions of the Act of July 2, 1890, commonly called the 'Sherman Anti-Trust Act' (Comp. St. Secs. 8820-8823, 8827-8830), and the amendments thereto. The trial court sustained a motion of defendants to strike plaintiff's petition from the files, and he brings error.

But two questions are presented. One of these arises in limine, and questions the correctness of the court's action in striking plaintiff's petition from the files. The other question is whether, conceding the correctness of the procedure, the petition before the court was insufficient as a matter of law. It is elementary that the federal District Courts in civil actions at law follow the practice and procedure of the states in which such courts are held. If the action taken below, in striking the plaintiff's petition from the files, was warranted by the Civil Code of Practice of the State of Nebraska, as that Code is interpreted by the Supreme Court of Nebraska, then it follows that the practice here adopted by the trial court was proper.

In a late case decided by the Supreme Court of Nebraska (Ferson v. Armour & Co., 192 N.W. 125) it was said:

'Plaintiff's fourth petition not only violated established rules, but it was filed in contempt of court. In a situation like this defendants are not limited to the statutory method of attacking the petition by motion to strike out improper matter or to make allegations more definite and certain. (Comp. Stat. 1922, Sec. 8673.) It may be stricken from the files, if fatal defects extend to the pleading as a whole, or if plaintiffs in filing it ignored an order of the court.' The section of the Civil Code of Nebraska, cited and construed by the Supreme Court of that state and here relied on as warranting the striking of the petition from the files, reads thus:

'Motions to strike pleadings and papers from the files may be made with or without notice as the court or judge shall direct. ' Section 8673, Comp. Stats. of Nebraska of 1922.

While, of course, the above language of the Nebraska statute settles the question of the power of the court to strike a pleading from the files, it does not settle the question as to the conditions and situation in which the use of the power may be properly exercised. The Supreme Court of Nebraska does, however, settle that question by saying that a petition 'may be stricken from the files if fatal defects extend to the pleading as a whole.'

It follows then that if fatal defects extend to the petition of plaintiff as a whole in the case at bar, the action of the trial court was warranted. The language used by the Supreme Court of Nebraska seems to mean that if no cause of action is stated in the petition, it may properly be stricken from the files. A similar, or at least analogous, practice is common in other Code states. Motions to strike out a pleading are often used to perform the office of a demurrer, and when so used are regarded as demurrers, Shohoney v. Railroad, 231 Mo.loc.cit. 148, 132 S.W. 1059, Ann. Cas. 1912A, 1143.

It follows then that the point of procedure raised is a mere corollary of the other question mooted on the record. If upon an examination of that question it shall develop that the petition was not fatally defective, then it was error to strike it from the files. Upon the view, touching the petition, which was taken by trial court, that is, that it was fatally defective, he committed no error in procedure in striking it from the files. So, the question is: was it fatally bad?

The petition in this case has at least the merit of brevity which greatly lightens the labor of analysis, and the statement of its salient allegations. No point is made as to jurisdictional averments, so far as regard diversity of citizenship and the amount in controversy. Following these merely jurisdictional averments, it is alleged that the action is brought, as already forecast, under the provisions of the Sherman Anti-Trust Act and the Clayton Act (38 Stat. 730); that defendants are engaged in the slaughter of cattle, hogs, sheep, and calves, and in the distribution of dressed meats to butchers, and through the latter to consumers; that defendants, on the information and belief of plaintiff, have since the year 1900 conspired, and from that year down to the time of the bringing of this action have been engaged in a conspiracy, to maintain a monopoly, in restraint of trade, in the business of buying and slaughtering live stock, and in preparing the carcasses thereof for distribution and consumption; that defendants in violation of the Act of July 2, 1890, and the amendments thereto, and in order to restrain competition in the purchase of live stock, have engaged in a combination and conspiracy among themselves in which they intend to continue 'for directing and requiring their respective purchasing agents' in the several live stock markets, where defendants buy live stock and to which live stock is shipped by the producers for competitive sale, to refrain from bidding against each other in the purchase of such live stock, thus and thereby compelling the owners of such stock to sell same at prices less than such owners would receive if the bidding were competitive. It is further alleged that defendants have combined and conspired to 'bid up' the prices...