Liberty Oil Co. v. Condon Nat. Bank

• Decision Date: 09 March 1921
• Docket Number: 5642.
• Citation: 271 F. 928
• Parties: LIBERTY OIL CO. v. CONDON NAT. BANK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F. 928

LIBERTY OIL CO. v. CONDON NAT. BANK et al.

No. 5642.

United States Court of Appeals, Eighth Circuit.

March 9, 1921

Rehearing Denied May 12, 1921.

Charles G. Yankey, of Wichita, Kan., and Frederick W Lehmann, of St. Louis, Mo. (Harry E. Karr and Edward M Hammond, both of Baltimore, Md., on the brief), for appellant.

John J Jones, of Wichita, Kan. (J. H. Keith, of Coffeyville, Kan., on the brief), for appellees.

Before HOOK and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

Appellant commenced this action as an action at law against the Condon National Bank to recover the sum of $100,000, which the bank held on deposit to be paid to either appellant or appellees as the terms of a contract between them should be or not be performed. The case, although an action at law, has been brought here by appeal, instead of by writ of error. Section 1649a, U.S. Comp. Stat. (39 Stat. 727), reads as follows: 'No court having power to review a judgment or decree rendered or passed by another shall dismiss a writ of error solely because an appeal should have been taken, or dismiss an appeal solely because a writ of error should have been sued out, but when such mistake or error occurs it shall disregard the same and take the action which would be appropriate if the proper appellate procedure had been followed.'

We therefore disregard the mistake, and take the action which would be appropriate, if the proper appellate procedure had been followed. The bank in its answer made the following allegations:

'That heretofore, and on the 24th day of May, 1918, the Liberty Oil Company, Incorporated, entered into a written contract with the Atlas Petroleum Company, a corporation, C. M. Ball, Isadore Litman, P. G. Keith, and J. H. Keith, a copy of which contract is attached to plaintiff's petition, marked Exhibit A, reference to which contract is hereby made, as a part hereof, as fully and to the same extent and with like effect as the herein full set out. * * *

'That in accordance with and under and by virtue of said Exhibits A and B attached to plaintiff's petition, plaintiff paid to this defendant on the 24th day of May, 1918, the sum of one hundred thousand dollars ($100,000), which said sum said defendant now has in its possession and under its control; that this defendant has no interest whatever in said sum of $100,000, except to see that the same is passed into the hands of the parties entitled thereto, and to discharge itself of all liability under said instrument in writing, copy of which is attached to plaintiff's petition, marked Exhibit B.

'That the plaintiff herein has demanded of the defendant the said sum of $100,000, and that the said Atlas Petroleum Company, C. M. Ball, Isadore Litman, P. G. Keith, and J. H. Keith have likewise and also demanded that the defendant herein pay and deliver to them the said $100,000, so deposited with this defendant under said Exhibit B of plaintiff's petition.

'This defendant, not knowing who is justly entitled to said sum of $100,000, has heretofore refused to pay or deliver the same to either the plaintiff or the said Atlas Petroleum Company, C. M. Ball, Isadore Litman, P. G. Keith, and J. H. Keith, and now asks that the said Atlas Petroleum Company, C. M. Ball, Isadore Litman, P. G. Keith and J. H. Keith, and each of them, be made parties to this cause, and brought into this action, and required to set up their claim to said sum of $100,000.'

The case subsequently came up for hearing upon the petition of appellant and the answer of the bank. The court ordered that appellees other than the bank be made parties to the action and that they should set up their claim or interest in the fund in controversy within 20 days. Appellees other than the bank by answer and cross-petition set forth their claim to the fund in controversy. Appellant answered the cross-petition. The bank paid the money into court and had nothing further to do with the controversy. The action between appellant and appellees other than the bank proceeded as an action at law, as it had been commenced. Seven months after issue joined the case was heard by the court, a jury being duly waived, under the statute allowing a jury to be waived in law actions. The...