Lawrence v. Times Printing Co.

• Decision Date: 31 October 1898
• Citation: 90 F. 24
• Parties: LAWRENCE v. TIMES PRINTING CO. et al.
• Court: United States Circuit Court, District of Washington, Northern Division

90 F. 24

LAWRENCE v. TIMES PRINTING CO. et al.

United States Circuit Court, D. Washington, Northern Division.

October 31, 1898

Ballinger Ronald & Battle and Donworth & Howe, for plaintiff.

Bausman Kelleher & Emory and Thomas Burke, for Times Printing Co.

Pratt &amp Riddle, for the Associated Press.

HANFORD District Judge.

The complainant, a citizen of the state of Iowa, brings this suit against the Times Printing Company, a corporation of the state of Washington, and the Associated Press, a corporation of the state of Illinois. In his amended bill of complaint the complainant sets forth in detail the history of a daily newspaper published in the city of Seattle, under the names, successively, of the 'Seattle Press-Times,' 'Seattle Times,' 'Seattle Evening Times,' and 'Seattle Daily Times'; but it is sufficient for the purpose of this opinion to state the important facts briefly as follows: On the 9th day of March, 1895, there was a corporation called the 'Seattle Press-Times Company,' then engaged in the publication of said newspaper, under the name of the 'Seattle Press-Times'; and on that day said company, to secure payment of an indebtedness amounting to $12,000, executed to John Collins a chattel mortgage covering all the printing-office material and appliances, together with the said newspaper plant, and the circulation, franchises, and good will thereof. At that time, the publishing company held a contract entitling it, as a member of the Associated Press, to receive and publish in said newspaper, the day news collected by the Associated Press, which contract is in the pleadings called a 'franchise.' In the contract it is provided that the privilege granted thereby might be transferred with the said newspaper, provided the new proprietor should enter into a new contract with the Associated Press similar thereto. On the 27th of June, 1895, the Seattle Press-Times Company, by amendment of its articles of incorporation, became the Times Company; and on the 4th day of June, 1895, the Times Company entered into a new contract with the Associated Press, which was merely a substitute for the franchise contract previously owned by the company. In the month of June, 1897, a new corporation was organized, called the Times Printing Company, which is one of the defendants herein, said new company having the same officers as the Times Company; and all of said mortgaged property, including the newspaper plant, with its franchises, good will, and circulation, was transferred from the Times Company to said defendant, and again there was a substitution of a new contract between the Associated Press and the Times Printing Company, in place of the franchise contract theretofore held by the Times Company. The chattel mortgage was assigned to one Gilliland, who obtained a decree of foreclosure, and in the month of February, 1898, became the purchaser of all the mortgaged property at a sale thereof made by the sheriff of King county, pursuant to the decree of foreclosure; and the complainant is his vendee and assignee as to said property, with all his rights as purchaser thereof at the foreclosure sale. The defendant the Times Printing Company is in possession of, and withholds from the plaintiff, the books containing the names of subscribers and patrons of said newspaper, and the books of account belonging to said newspaper plant, and is in enjoyment of a monopoly in obtaining and publishing day news under the franchise contract with the Associated Press. The complainant avers that he is the owner and is entitled to have possession of said books of circulation and accounts, and entitled to enjoy the privilege of receiving and publishing the day news furnished by the Associated Press, and that he wishes to continue publication in the city of Seattle of the daily newspaper which was covered by said mortgage. The defendant the Times Printing Company has demurred to said amended complaint, and other defendant, the Associated Press, has interposed a plea to the jurisdiction. The jurisdiction of the court to adjudicate as to the rights of the parties under the franchise contract with the Associated Press is denied by the demurrer of the Times Printing Company, and also by the plea of the other defendant, on the ground that the Associated Press is an indispensable party; and, as the only ground for invoking the jurisdiction of a federal court is diversity of citizenship, the Associated Press cannot be made a defendant in a suit originally commenced in a United States circuit court, except 'in the district of the residence, either of the plaintiff or the defendant.'

In their argument in support of the jurisdiction of this court, counsel for the complainant insists that this is not a suit to enforce a personal liability, but rather a suit founded upon a claim to specific property situated within this district, and that the right to bring the suit in this court is given by section 738, Rev. St. U.S., which section provides:

'That when in any suit commenced in any circuit court of the United States, to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear. * * * '

They say that the complainant asserts ownership and legal title to the franchise in question, but that, through the fraud of the respondent the Times Printing Company, the possession and enjoyment of his property rights in this and...