Newport v. Revyuk

• Decision Date: 11 June 1962
• Docket Number: No. 16876.,16876.
• Citation: 303 F.2d 23
• Parties: Walter A. NEWPORT, Jr., and Donald A. Wine, Appellants, v. Elizabeth J. REVYUK and Leslie Snook, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

303 F.2d 23 (1962)

Walter A. NEWPORT, Jr., and Donald A. Wine, Appellants, v. Elizabeth J. REVYUK and Leslie Snook, Appellees.

No. 16876.

United States Court of Appeals Eighth Circuit.

May 15, 1962.

Rehearing Denied June 11, 1962.

Walter A. Newport, Jr., of Newport & Wine, Davenport, Iowa, Donald A. Wine, Davenport, Iowa, on the brief, for appellant.

Herbert S. Selby, Newton, Iowa, Cross, Hamill, Selby & Updegraff, Newton, Iowa, on the brief, for appellees.

Before SANBORN, VOGEL and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal from an order of the District Court, filed May 26, 1961, dismissing, with prejudice, a diversity action commenced June 23, 1957, by A. Richard Greene, a New York Lawyer, based upon his claim (subsequently acquired by the appellants) that Elizabeth J. Revyuk was indebted to him for attorney's fees and expenses.

The appellants are attorneys at law of Davenport, Iowa. Early in May of 1957 they were employed by A. Richard Greene in connection with his claim against Elizabeth J. Revyuk. Greene had been counsel for her in the case of Elizabeth J. Revyuk v. Ora B. Maytag et al., a diversity action brought in 1955 in the United States District Court for the Southern District of Iowa. On April 16, 1957, he filed in that action a notice of attorney's lien in the sum of $60,000 for attorney's fees, expenses and costs stated to be due him from Mrs. Revyuk. To secure release of the lien, Mrs. Revyuk on May 25, 1957, filed a bond for $75,000 under Section 610.19, Code of Iowa 1954, I.C.A. Leslie Snook was the surety. Greene was directed by the court to bring suit on the bond. There was diversity of citizenship. Greene filed his complaint June 23, 1957, asking for judgment for $60,000 against Mrs. Revyuk and Leslie Snook on the ground that she owed Greene that amount for attorney's fees and expenses. This, she in her answer — filed October 15, 1957, — denied. More than a year later, on November 3, 1958, she filed an amendment to her answer, asserting an "offset" in excess of $50,000 against Greene's claim, and several counterclaims. She asked for judgment against him for more than $100,000, for production of documents and property in his possession belonging to her, for an accounting, and for other relief. Greene failed to cooperate with the appellants in their efforts to establish his claim for fees against Mrs. Revyuk. He left Iowa during the taking of his deposition in October 1957, and apparently has never returned. On December 11, 1957, the appellants withdrew as attorneys for Greene. On the following day they filed notice of attorneys' lien against him, claiming that he owed them $9,832.11 for fees and disbursements. On January 29, 1958, they commenced a diversity action in the United States District Court for the Southern District of Iowa against Greene to recover that amount. On February 24, 1958, without having secured personal service, they obtained what purported to be a judgment against him. They then attempted to acquire his claim against Mrs. Revyuk at an execution sale based on that judgment. The District Court, on motion of the appellees, dismissed the appellants' action against Greene on March 28, 1960, and vacated an order of May 2, 1958, substituting them as plaintiffs in place of Greene in his action on the bond of Mrs. Revyuk and Leslie Snook.

In August of 1960 the appellants procured a judgment for $11,211.80 against Greene in the United States District Court for the Southern District of New York. On November 9, 1960, they purchased his claim against Mrs. Revyuk at execution sale, under the registration of that judgment in the Southern District of Iowa. They acquired, on January 24, 1961, the status of plaintiffs with Greene in his action against her for his fees and expenses.

We shall let the unreported Memorandum and Order of Judge Stephenson — filed May 26, 1961, — of which the appellants complain, speak for itself. It reads as follows:

"IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA CENTRAL DIVISION. A. RICHARD GREENE, Claimant, | WALTER A. NEWPORT, JR., and | DONALD A. WINE, Plaintiffs, | Civil No vs. | 3-793 ELIZABETH J. REVYUK and &gt LESLIE SNOOK, Defendants. | | "(Memorandum and Order.) |

"This matter is before the court on defendants' pending Motion to Dismiss, on plaintiffs' Motion for Summary Judgment, claimant's Motion Relative to Taking the Deposition of the claimant and The Production of Books, Records and Documents, and the defendants' Resistance to Plaintiffs' Motion for Summary Judgment and to Claimant's Motion Relative to the Taking of the Deposition of the Claimant and the Production of Books, Records and Documents, and the renewed Motion to Dismiss contained in Division III thereof, and the Defendants, Elizabeth J. Revyuk and Leslie Snook, appearing by their attorney, Herbert S. Selby and the Plaintiffs, Walter A. Newport, Jr., and Donald A. Wine, appearing pro se and the Claimant, A. Richard Greene, appearing not nor anyone for him, and the Court being fully advised in the premises, finds as follows:

"(1) That this cause has been pending for nearly four years. It commenced with the filing of a claimed attorney's lien by the claimant, A. Richard Greene, in April of 1957. A bond was thereafter filed and in June 1957, the claimant, A. Richard Greene, commenced suit thereon. On August 29, 1957, the court ordered that depositions could be taken upon application of the defendants for the taking of such depositions and that all of such depositions would be judicially supervised by the court in conformity to previous orders of the court. The depositions of the defendant, Elizabeth J. Revyuk and her husband, Michael Revyuk were then taken in Des Moines, Iowa, Michael Revyuk having been voluntarily produced for such deposition. As ordered by the court the discovery deposition of the claimant, A. Richard Greene, was thereafter commenced on October 2, 1957, under judicial supervision as previously ordered by the court, but after the commencement of said deposition it was on that same date interrupted and discontinued by the claimant, A. Richard Greene, through his pleas of personal illness, and illness of members of his family. The court at that time ordered said discovery deposition resumed on November 5, 1957. The claimant, A. Richard Greene, did not appear as ordered on November 5, 1957, and the court at that time entered a further order for the continuance of his deposition containing certain conditions and requirements including medical reports by A. Richard Greene to the court every two weeks, which order has not been complied with. Time for the resumption of the taking of the claimant's deposition and the production of books, records and documents was later set by order of this court for March 28, 1961, at 9:30 a. m., at the Federal Court House in Des Moines, Iowa. After notice was given to him, the claimant did not appear or produce the books, records and documents at that time but sent a last minute telegram to the court and later that day filed his motion relative to the taking of the deposition of the claimant, wherein claimant, A. Richard Greene, asked that said deposition and production of books and records be held in New York and further that it be postponed until April 28, 1961. On March 28, 1961, in open court and in the presence of Walter A. Newport, attorney for plaintiffs and Herbert S. Selby, attorney for defendants, the court announced its finding that the claimant, A. Richard Greene, was in default and his claim should be dismissed; the court took under advisement defendants' motion for dismissal as to plaintiffs, Walter A. Newport and Donald A. Wine, and granted the parties additional time in which to file briefs. Thereafter, plaintiffs Walter A. Newport, Jr. and Donald A. Wine, filed motion for summary judgment and the same came on for oral hearing on April 28, 1961.

"(2) The court finds that its previous finding (March 28, 1961) that the claim of A. Richard Greene should be dismissed should be reaffirmed and the motion of claimant, A. Richard Greene, to transfer the taking of the deposition to New York and to postpone the taking of the deposition to April 28, 1961, is without merit and should be denied. The Honorable Robert Van Pelt in a Memorandum filed herein over a year ago (February 10, 1960) said, `Defendants seek dismissal of this cause for failure of Greene to prosecute or comply with the orders of the court. The Motion is good so far as Greene is concerned. It would not be fair to Newport and Wine, however, to dismiss the case in event they appeal this decision.' Newport and Wine appealed from Judge Van Pelt's ruling dismissing their complaint against A. Richard Greene for attorney fees, but thereafter dismissed their appeal as moot¹ because in the meantime they had obtained a personal judgment against A. Richard Greene in the U. S. District Court for the Southern District of New York and thereafter purchased the claim of A. Richard Greene against defendants herein at the U. S. Marshal's sale on November 9, 1960, held pursuant to the issuance of execution and the resulting levy on the chose in action herein. On January 24, 1961, this court ordered joinder of Walter A. Newport, Jr. and Donald A. Wine, as party plaintiffs and directed that this matter be brought to trial at the May term of this court or suffer dismissal for want of prosecution. On motion of the defendants this court ordered claimant, A. Richard Greene to appear for the taking of his deposition and to produce books, records and documents as set out in paragraph (1) hereof. The claim of A. Richard Greene herein having been dismissed as to him, the next question before the court is whether said claim should be dismissed as to all. Newport and Wine concede they have no control over A. Richard Greene and cannot produce him for deposition or the books, records and documents sought by the defendants. However,...