Kean v. Hurley

• Decision Date: 09 February 1950
• Docket Number: No. 13922.,13922.
• Citation: 179 F.2d 888
• Parties: KEAN v. HURLEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

179 F.2d 888 (1950)

KEAN v. HURLEY et al.

No. 13922.

United States Court of Appeals Eighth Circuit.

February 9, 1950.

Clarence W. Heyl, Peoria, Ill. (Heyl, Royster & Voelker, Peoria, Ill. and Roy J. Mordaunt, Minneapolis, Minn. on the brief) for appellant.

Mandt Torrison, St. Paul, Minn. (Thomas O. Kachelmacher, George W. Colburn and James B. Lund, Minneapolis, Minn. on the brief) for appellees.

Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This was a proceeding in contempt brought against appellees for the alleged violation of an injunctional decree. The injunctional decree was entered in a suit brought by plaintiff's grantor and predecessor in interest in the Federal Court for the District of Minnesota. The jurisdiction of the court was based upon diversity of citizenship, the plaintiff in that suit being a resident of Florida and the owner of a large tract of land in northern Minnesota, known as the "Joyce Estate." The named defendants in that suit were Dick Bailey and E. Gonsolin. They were personally served but did not appear and the decree was a default decree. By its terms the decree enjoined "Dick Bailey and E. Gonsolin, and each of them." The decree contained further provision,

"It is further, Ordered, Adjudged and Decreed by the Court that all of the above named defendants, or any or either of them, and all persons whomsoever from and after the time they severally obtain notice or knowledge of the issuance of the injunction pursuant to the original decree entered herein on May 11th, 1925, and as this day amended, are permanently and perpetually enjoined from going into or upon the lands described in said original decree, as this day amended, or going over the same or taking any equipment, traps, or other paraphernalia into or upon the same, and from hunting, shooting, trapping or trespassing thereon, or from aiding, abetting, assisting, counseling or encouraging any other person or persons in violating said injunction, and from removing or attempting to remove any game, animals of property therefrom, or injuring the same."

The original decree was entered May 11, 1925, but was later amended by adding certain parcels of land to it and substituting the present plaintiff in lieu of the original plaintiff, who was her predecessor in interest.

Upon petition of appellant the court, under date April 23, 1948, directed appellees to show cause why they should not be held in contempt of court for violating this injunction. The plaintiff alleged trespassing upon the premises by the appellees. Appellees filed answers supported by affidavits in which they challenged the sufficiency of the petition and affidavit accompanying the same, to state a cause of action, and they alleged that they were not acquainted with the defendants named in the injunction suit; that they are not officers, agents, servants, employees or attorneys for the named defendants; that they had never been associated with them in any way; that they had never been personally served with a copy of the injunction and had no actual notice of it; that the court was without jurisdiction to issue the original or amended injunction so far as the appellees were concerned. Other allegations do not seem to be material to the issues actually decided by the trial court. After full hearing the court entered findings holding that appellees were not in contempt of court. The court found that appellees had not acted in concert with the named defendants or participated with them and that the court was without jurisdiction to issue an injunction against appellees in the terms which it did. The court made no findings as to the acts constituting the alleged trespass, nor as to the knowledge or notice of the issuance of the injunction prior to appellees' acts of going upon the land. We shall confine our consideration to the issue determined by the trial court.

Appellant maintains in this court, as it did in the trial court, that the court had jurisdiction to issue the injunction binding upon the appellees, though they were not parties to the action, nor officers, agents, servants, employees or attorneys for the named defendants.

At the time of the entry of the injunctional decree, Section 383, Title 28 U.S. C.A., was in full force and effect. The section provides, "Every order of injunction or restraining order * * * shall be binding only upon the parties to the suit, their officers, agents, servants, employees, and attorneys, or those in active concert or participating with them, and who shall, by personal service or otherwise, have received actual notice of the same."

This matter of procedure is now governed by Rule 65(d) Federal Rules of Civil Procedure, 28 U.S.C.A. So far as the question here involved, the now prevailing rule of court is substantially the same as the above quoted statute.

The trial court in disposing of the issue, among other things said, "It is conceded that these respondents did not act in concert or participate with the named defendants, Bailey and Gonsolin. Neither were they agents, servants or employees of the defendants."

A judgment or decree for injunction is usually in personam and as such binding upon the parties to the litigation and those who are represented by such parties or are in privity with them. Stated conversely, persons who are not parties to the injunction or in privity with them, and whose rights have not been adjudicated therein, are not bound by the decree and can not be held liable for acts done contrary thereto even though the decree assumes to bind them. Chase National...