Jones v. Schellenberger, 10696.

• Decision Date: 16 January 1953
• Docket Number: No. 10696.,10696.
• Citation: 201 F.2d 29
• Parties: JONES v. SCHELLENBERGER.
• Court: U.S. Court of Appeals — Seventh Circuit

201 F.2d 29 (1953)

JONES v. SCHELLENBERGER.

No. 10696.

United States Court of Appeals Seventh Circuit.

January 16, 1953.

William E. Rodriguez and Richard P. Garrett, Chicago, Ill., for appellant.

Harold E. Marks, Edward H. Enright and Herman Herson, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and LINDLEY, Circuit Judges.

MAJOR, Chief Judge.

A phase of the suit out of which the instant controversy arises was before this court in Jones v. Schellenberger, 196 F.2d 852. We refer to our opinion in that case for the details relative to the origin and nature of the case. As there shown, plaintiff as the administratrix of the estate of her deceased husband, Ralph D. Schellenberger, brought suit against James A. Schellenberger, the instant defendant, for a partnership accounting. Jurisdiction rested upon diversity of citizenship, with the requisite amount involved. The matter was referred to a Master and, after the defendant learned of a likely adverse decision, he petitioned and obtained the appointment of an administrator in the Probate Court of Cook County. The Illinois administrator then petitioned the District Court for leave to be substituted as a party-plaintiff. This petition for leave to substitute was denied by the District Court, which denial was affirmed by this court, as shown by the above cited case.

Subsequently, plaintiff petitioned the District Court for an order appointing a receiver to take charge of the partnership assets and for an order restraining the defendant from disposing of such assets or any money which he had received from the sale of such assets. The matter was referred to a Master, a hearing was held and a report made recommending that a receiver be appointed and an injunction issued. Defendant's objections to such report were overruled and an order entered in conformity with the recommendations of the Master. Defendant appeals from this order.

Defendant appears to argue two propositions, (1) that the court was without jurisdiction of the subject matter, and (2) in any event, that the order appointing a receiver and providing for an injunction was improvident. We think there is not a scintilla of merit in either contention.

The argument as to jurisdiction appears to be an afterthought. No such question has heretofore been raised; in fact, the jurisdiction of the court was recognized by seeking to have the Illinois administrator substituted as a party-plaintiff. Defendant cites cases in support of his contention that the question of jurisdiction can be raised at any stage of the proceeding. We, of course, recognize this principle but it is without application here. There can be no doubt but that the District Court acquired jurisdiction of both the parties and the subject matter. Although it is not plain, it appears to be defendant's position that such jurisdiction was lost upon the subsequent appointment of an Illinois administrator. No...