Menashe v. Sutton
| Decision Date | 30 January 1947 |
| Citation | 71 F. Supp. 103 |
| Parties | MENASHE v. SUTTON et al. |
| Court | U.S. District Court — Southern District of New York |
George A. Ferris, of New York City (Albert Adams, of New York City, of counsel), for plaintiff.
William Gellin, of New York City (J. I. Isaacs, of New York City, of counsel), for defendants Murad A. Sutton and Adele Ancona Sutton.
Defendants seek an order dismissing the action for lack of jurisdiction over the subject matter and over the person of the defendants Sutton for lack of diversity of citizenship.
It appears from the moving affidavit that plaintiff, before the institution of this action, commenced an action against the defendants herein, and others, in the United States District Court for the Territory of Hawaii, and in his complaint in that action alleged his residence in New York, and that of the defendants, in Honolulu.
On motion of the defendants Sutton, the action was dismissed "for lack of jurisdiction." The order entered thereon October 17, 1946, recited "though alleged to be residents of the Territory of Hawaii are in fact residents of the State of New York."
Thereupon a suit in equity was brought by the plaintiff against the defendants Sutton et al. in the Circuit Court of the First Judicial Circuit, Territory of Hawaii, for an accounting, dissolution of partnerships, discovery and incidental relief, and by an order entered and filed in said action November 15, 1946, upon consent of the parties thereto, F. B. Carter III, of Honolulu, T. H., was appointed receiver of the copartnership business mentioned in the bill of complaint, and of all of its assets, including without limitation as to the generality of the foregoing, all property, books, papers and records thereof. It was agreed that no bond should be required of the receiver.
Thereupon proceedings were instituted in this court by the presentation of an affidavit by plaintiff's attorney, verified January 10, 1947, and a certified copy of the papers on file in said action pending in the Circuit Court of the First Judicial Circuit of the Territory of Hawaii, upon which Judge Rifkind made an order January 10, 1947, appointing an ancillary receiver of all the property of said copartnership within the jurisdiction of this court, and directing said ancillary receiver to report to this court, within 30 days from the date of said order with a full inventory of all property of which he shall have taken possession.
It is the contention of the defendants Sutton that the court is without jurisdiction to entertain this action because the plaintiff and the defendants Sutton are citizens and residents of the State of New York.
The question for determination is whether a receiver may be appointed by this court ancillary to a receivership in an action pending in the Circuit Court for the First Judicial Circuit in the Territory of Hawaii unless diversity of citizenship affirmatively appears.
In Mitchell, Insurance Commissioner of California, v. Maurer et al., 9 Cir., 67 F.2d 286, the court had before it a somewhat similar situation; International Re-insurance Corporation was organized under the laws of Delaware. It had a place of business and real and personal property in California. In an action brought in the Court of Chancery of Delaware, primary receivers of all of its property were appointed and authorized to apply in other jurisdictions for the appointment of ancillary receivers. Immediately they filed in the United States District Court for the Southern District of California a petition, or bill, praying that ancillary receivers be appointed of property there located. The application was granted ex parte. Simultaneously, the Insurance Commissioner of California filed in the Superior Court of that State a petition praying that he be placed in possession of the property and business of the corporation, and that court immediately entered a temporary order enjoining the corporation from disposing of its property in California and ordered the Insurance Commissioner to take possession thereof. Its license to transact the business of workmen's compensation insurance in that State had been revoked by that Commissioner prior to the appointment of the primary receivers. Ultimately the case reached the Circuit Court of Appeals for the Ninth Circuit, which in an opinion (69 F.2d 233, 238) said: "Finally, it has been held that an ancillary suit in a federal court does not depend on diverse citizenship."
On certiorari to the United States Supreme Court, 293 U.S. 237, 238, at page 243, 55 S.Ct. 162, at page 164, 79 L.Ed. 338, Mr. Justice Brandeis said: ...
To continue reading
Request your trial
-
United States v. Mulcahy
...the complaint for lack of jurisdiction. Judge Hulbert overruled this motion on February 5, 1947 with an opinion reported in Menashe v. Sutton, D.C., 71 F.Supp. 103. Thereafter Sutton filed his answer asserting that he is a resident of the state of New York, but later withdrew it and filed a......
-
Detres v. Lions Building Corporation
...U.S. 298, 312, 42 S.Ct. 343, 66 L.Ed. 627. See, also, American Insurance Co. v. Canter, 1828, 1 Pet. 511, 7 L.Ed. 242; Menashe v. Sutton, D.C. S.D.N.Y.1947, 71 F.Supp. 103. There are cases in which jurisdiction of the District Court for Puerto Rico has been upheld in a suit between a Puerto......
-
U.S. v. Franklin National Bank
...jurisdiction, we strongly indicated that an independent jurisdictional ground would be necessary. The lower court, in Menashe v. Sutton, 71 F.Supp. 103, 105 (S.D.N.Y.1947), an action ancillary to a Hawaii receivership, had held that the presence of a federally appointed receiver was suffici......
-
Menashe v. Sutton
...ex rel. Sutton v. Mulcahy, 2 Cir., 1948, 169 F.2d 94, 96. It has already received considerable judicial attention. See Menashe v. Sutton, D.C. S.D.N.Y.1947, 71 F.Supp. 103; U.S. ex rel. Sutton v. Mulcahy, supra. Several other motions in this action are now pending before other The present m......