Parker v. NEW ENGLAND OIL CORPORATION

• Decision Date: 22 October 1926
• Docket Number: No. 1747.,1747.
• Citation: 15 F.2d 236
• Parties: PARKER v. NEW ENGLAND OIL CORPORATION. In re WILTSEE et al.
• Court: U.S. District Court — District of Massachusetts

15 F.2d 236 (1926)

PARKER v. NEW ENGLAND OIL CORPORATION In re WILTSEE et al.

No. 1747.

District Court, D. Massachusetts.

October 22, 1926.

Charles F. Choate, Jr., of Boston, Mass., for petitioners.

Sherman L. Whipple and Claude B. Cross, both of Boston, Mass., for intervening creditors.

ANDERSON, Circuit Judge.

In accordance with the opinion of April 28, 1926, 13 F.(2d) 158, this court entered a final decree on May 15, 1926, against the New England Oil Refining Company and a "noteholders' committee," consisting of six named individuals. The term ended on June 21, 1926. On July 1, 1926, the noteholders' committee presented a petition for an appeal, in the usual form, covering the final decree, and also certain earlier interlocutory decrees.

This petition was allowed on the same date, with the usual order that a certified transcript of the record, testimony, exhibits, stipulations, and all proceedings be forthwith transmitted to the Circuit Court of Appeals. The citation was issued on July 7, 1926, acknowledgment of service was made on July 15, 1926. Præcipes were duly issued; the record prepared and printed; and this court (with a reservation not now material) approved of the record on August 18, as of August 14, 1926.

On October 18, more than five months after the final decree, the noteholders' committee filed in this court a petition to the effect that on or about June 13, 1926, their solicitor of record presented to Farley, a director and counsel of record for the New England Oil Refining Company, in these proceedings, a request that the Refining Company appeal from the decrees above referred to; that said request was communicated by said Farley to the proper officers in control of said Refining Company's affairs; that the committee were advised that the Refining Company had complied with said decrees, was not interested in taking an appeal, and did not care to take any action in the premises; that by inadvertence said request upon said Refining Company and the declination of said Refining Company to become a party appellant was not made a matter of record in this court before the allowance of the appeal of the committee on July 1, 1926.

The prayer is that this court allow "the filing of this petition nunc pro tunc as of June 15, 1926, and the facts shown in this petition and the affidavits be made a matter of record as of June 15, 1926, and that an order of severance may be entered nunc pro tunc as of June 16, 1926."

In the supporting affidavit of counsel for the committee he states that on June 13, 1926, he "conferred" with Farley, director of and attorney of record for the Refining Company, "and requested that the company appeal from the decrees" above referred to, and "was advised that the Refining Company declined to appeal."

Farley's affidavit is to the effect that on or about June 13, 1926, the solicitor for the committee "presented a request that the Refining Company appeal from the decrees" above referred to; that he communicated said request to the officers of said company and "was advised that the company had complied with said decrees and was not interested in an appeal therefrom and did not care to take any action."

It is well settled that, where there is joint judgment or decree, all parties respondent must join in the appeal proceedings, or there must be an order of severance or its equivalent, apparent in the record of the trial court. See Williams v. Bank, 11 Wheat. 414, 6 L. Ed. 508; Owings v. Kincannon, 7 Pet. 399, 8 L. Ed. 727; Sipperley v. Smith, 155 U. S. 86, 89, 15 S. Ct. 15, 39 L. Ed. 79; Maytin v. Vela, 216 U. S. 598, 30 S. Ct. 439, 54 L. Ed. 632; Inglehart v. Stansbury, 151 U. S. 68, 14 S. Ct. 237, 38 L. Ed. 76; Davis v. Mercantile Trust Co., 152 U. S. 591, 14 S. Ct. 693, 38 L. Ed. 563.

The earlier practice was to require a formal summons, duly served, and an order of severance. See Hardee v. Wilson, 146 U. S. 179, 13 S. Ct. 39, 36 L. Ed. 933. But this formal practice fell into disuse; and it was held that a written notice and due service, appearing of record, showing that one of the defendants had refused to join in the appellate proceedings, was enough. But in this opinion, the court, by Justice Shiras, says:

"We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good, if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join. But the mere allegation of his refusal, in the petition of appellant, does not prove this. We think there should be a written notice and due service, or the record should show his appearance and refusal, and that the court on that ground granted an appeal to the party who prayed for it, as to his own interest."

Compare Farmers' Loan & Trust Co. v. McClure, 78 F. 211, 213, 24 C. C. A. 66, where Judge Sanborn refers to the old remedy by formal summons and severance, and notes that that in Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953, the Supreme Court, in an opinion by Mr. Justice Miller, had held the appeal good, if it appeared that the party who had refused to join "had been notified in writing to appear, and then he had failed to appear, or, if appearing, had refused to join."

It may be noted that in this case a formal allegation in the petition was held insufficient. No case has come to the attention of this court in which proceedings less formal than a written notice were held good.

The petition and the supporting affidavits all import that the request to the Refining Company was merely an informal conference between counsel. There is no allegation or evidence that the request was in writing; inferentially, writing is negatived. Masterson v. Herndon, 10 Wall. 416, 417, 19 L. Ed. 953; Hardee v. Wilson, 146 U. S. 179, 181, 13 S. Ct. 39, 36 L. Ed. 933; Farmers' Loan & Trust Co. v. McClure, 78 F. 211, 213, 24 C. C. A. 66.

While in Farley's affidavit he asserts that the request was made to him, and that he referred it to the officers of the company, he does not set forth that he communicated their attitude to the solicitor for the committee.

But defects in the offer of proof are of no import, unless the evidence is legally subject to the consideration of this court.

This court agrees with counsel for the committee that it is not for this court to consider whether, on the present record, the appeal can be maintained. That is for the court above. The duty of this court is within narrow compass. The sole question for this court to determine is as to its power, in a subsequent term, after appeal allowed, entered and docketed in the Circuit Court of Appeals, to receive evidence, make a finding of fact, and enter an order of severance based thereon, all nunc pro tunc as of June 16, 1926, before the end of the term within which the final decree was entered and before the allowance of the petition for appeal.

Counsel for the committee concedes that the general rule is that, after appeal allowed and entered in the court above, the cause is transferred to the appellate court and that the District Court has no jurisdiction or power to change the record on which the final decree is based.

Of course the court below, as part of its duty to approve an accurate record for the determination of the appeal in the court above, has power to correct merely clerical errors and omissions. But to correct an error in a record already made is a radically different proceeding from making a change in a completed record. Draper v. Davis, 102 U. S. 370, 26 L. Ed. 121; Keyser v. Farr, 105 U. S. 265, 26 L. Ed. 1025; Hovey v. McDonald, 109 U. S. 150, 3 S. Ct. 136, 27 L. Ed. 888; Aspen Mining & Smelting Co. v. Billings, 150 U. S. 31, 14 S. Ct. 4, 37 L. Ed. 986; Heitmuller v. Stokes, 256 U. S. 359, 41 S. Ct. 522, 65 L. Ed. 990; Citizens' Bank of Wichita v. Farwell, 56 F. 539, 6 C. C. A. 30; Midland Term. R. Co. v. Warinner (C. C. A.) 294 F. 185; St. Louis & S. F. R. Co. v. Loughmiller (D. C.) 193 F. 689; Lockman v. Lang, 132 F. 1, 65 C. C. A. 621; United States...