Ripperger v. AC Allyn & Co.
| Decision Date | 15 July 1940 |
| Docket Number | No. 406.,406. |
| Parties | RIPPERGER v. A. C. ALLYN & CO., Inc., et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob K. Javits and Percival E. Jackson, both of New York City, for appellant.
Claire W. Hardy, of Chicago, Ill., for appellee A. C. Allyn & Co., Inc.
Sullivan & Cromwell, of New York City (John C. Bruton, Jr., and Frank J. Berberich, both of New York City, of counsel), for appellee First Boston Corporation.
Before SWAN, CLARK, and PATTERSON, Circuit Judges.
This appeal is submitted upon an agreed statement pursuant to Rule 76, Federal Rules of Civil Procedure, 28 U. S.C.A. following section 723c. The question presented is whether the court erred in holding that orders of dismissal for lack of jurisdiction on the ground of improper venue entered in a prior suit on the same cause of action and in the same court require dismissal of the present suit as against the appellees on the principle of res judicata.
The facts are briefly as follows: In 1938 the plaintiff, as receiver of United States Electric Power Corporation, incorporated in Maryland, brought suit in the district court for the southern district of New York against the directors of said corporation and others, charging a conspiracy to use the corporate assets for their private profit. Among the defendants named in that suit were A. C. Allyn & Co., Inc., a Delaware corporation, and First Boston Corporation, a Massachusetts corporation. As neither of the corporations nor the plaintiff was a citizen or resident of New York, they respectively moved to vacate service of summons and to dismiss the complaint as to them for lack of jurisdiction on the ground of improper venue. These motions were granted. The plaintiff took no appeal from the orders of dismissal. Thereafter he instituted similar suits based upon the same transactions against First Boston Corporation and A. C. Allyn & Co., Inc., in the federal district courts of Massachusetts and Delaware, respectively. These cases are at issue and awaiting trial. After the decision of the Supreme Court in Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, 60 S.Ct. 153, 84 L.Ed. 167, the plaintiff brought the present suit against the appellees and another corporation, Schroder-Rockefeller & Co., Inc., which had not previously been sued. The complaint in the present suit alleges that each of the appellees had designated an agent for service of process within the state of New York. In all other respects the complaint is similar to the complaint in the plaintiff's former suit in the court below and sets forth the same transactions. On motions of the appellees the complaint was dismissed as to them on the ground that the orders of dismissal in the former suit are res judicata on the question of the district court's lack of jurisdiction for want of venue in the present suit. By this appeal the plaintiff seeks to reverse that holding and, if he succeeds, he intends to apply for an order consolidating for trial the present action with his former action, which is still pending against other parties and is expected to come to trial next September.
The appellant concedes, as he necessarily must on the authorities, that a decision in favor of jurisdiction is res judicata and invulnerable to collateral attack, even though the ground on which the decision was rested has subsequently been overruled. See United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 69 L.Ed. 262; Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 524, 51 S.Ct. 517, 75 L.Ed. 1244; American Surety Co. v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231, 86 A.L.R. 298; Chicot County District v. Baxter State Bank, 308 U.S. 371, 376, 60 S.Ct. 317, 84 L.Ed. 329; Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263; Sorenson v. Sutherland, 2 Cir., 109 F.2d 714, 718, certiorari granted sub nom. Jackson v. Irving Trust Co., 310 U.S. 621, 60 S.Ct. 1103, 84 L.Ed. ___. But he advances the contention that a decision that jurisdiction is lacking leaves the parties as though no...
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