Rowan v. Ide

• Decision Date: 26 March 1901
• Docket Number: 1,024.
• Citation: 107 F. 161
• Parties: ROWAN et al. v. IDE.
• Court: U.S. Court of Appeals — Fifth Circuit

107 F. 161

ROWAN et al. v. IDE.

No. 1,024.

United States Court of Appeals, Fifth Circuit.

March 26, 1901

This is an appeal from an interlocutory order entered in an equity case. The matters charged in the bill of complaint, briefly stated, are as follows: The complainant, E. T. Ide, is a citizen of the state of Vermont. Some time prior to the filing of the bill, one Edwin Underwood, who is also a citizen of Vermont, arranged with the defendant B. F Richardson, a citizen of Massachusetts, that 50 shares of the capital stock of the defendant the Tredegar National Bank owned by the former, should be transferred on the books of the company to, and a certificate therefor issued in the name of, the latter, and by him indorsed in blank to the former. This was done. Some time in September, 1900, Underwood authorized Richardson to sell this stock for him for $106 a share. On September 20th Richardson gave an option to the defendant Crosby, who is also a citizen of Massachusetts, to take this stock at $106 a share at any time within ten days or two weeks. The bill alleges that Underwood refused to recognize Richardson's right to give this option, and further alleges that on September 24th Underwood 'sold transferred, and assigned' the stock to the complainant for $5,100, which was paid at the time of sale. The bill goes on to allege that the certificate for the stock was in Underwood's safe in Boston, and, when the stock was sold to the complainant, Underwood informed Richardson of that fact, and sent him the keys of the safe, requesting him to obtain the certificate and return it to him for delivery, and that Richardson, instead of doing as requested, handed the certificate to Crosby, and received from him the price he had agreed to pay. It is further alleged that Underwood refused to receive this money from Richardson, and directed him to return it to Crosby, and that Richardson did so tender it and demanded that the certificate of stock be surrendered, which Crosby refused and still refuses to do. The bill further alleges that Crosby purchased the stock as the agent of, and holds it in trust for, the other defendants; that the defendants propose to have the stock transferred on the books of the bank to the name of some one of them, and to vote at an approaching stockholders' meeting; that the object of the defendants is to obtain control of the bank, and to exclude the complainant and other stockholders from participation in its management, to the irreparable injury of the complainant and of the bank. The relief prayed is (1) that the defendants be enjoined from assigning the stock or having it transferred to them on the books of the company, and from voting or attempting to vote the same at any stockholders' meeting; (2) that the transfer to the defendant Crosby be declared null and void, and that the defendants be required to surrender it up to be canceled; and (3) that a certificate for the stock be decreed to be issued to the complainant.

October 10, 1900, the bill was presented to the Honorable John Bruce, district judge of the district, who forthwith issued the injunction prayed for, without notice, and without hearing, and without bond. An application to dissolve and discharge this injunction was filed on October 24, 1900, based on grounds as follows:

'(1) That there is no equity in the bill of complainant. (2) That the said injunction was granted improvidently and without notice to the defendants, and without showing that irreparable damage would ensue from delay in granting said injunction after notice. (3) On the ground that the complainant has a plain, adequate, and complete remedy at law. (4) That the said bill fails to set up any facts sufficient which entitle the complainant to the interposition of a court of equity. (5) That this court has no jurisdiction of said cause, because indispensable parties cannot be made parties to the said bill, on account of nonresidence.'

Notice was given of this motion, and the same was brought on for hearing before the Honorable David D. Shelby, circuit judge, who on November 7, 1900, entered an order as follows:

'The motion to discharge and dissolve the injunction in this case filed October 24, 1900, having been submitted on briefs, and having been duly considered, it is now ordered, adjudged, and decreed that said motion be overruled, but without prejudice to the right of the defendants to renew the motion, if they think proper to do so, before the Honorable John Bruce, district judge, who made the order granting the injunction.

'At chambers, New Orleans, Louisiana, November 6th, 1900.

'David D. Shelby, U.S. Circuit Judge.'

On November 15th another motion to discharge and vacate the injunction was made on the following grounds:

'(1) Because the same was granted without notice, and in violation of the law and the rules of the court. (2) That this court has no jurisdiction of the case, because indispensable parties cannot be made parties to the bill; they being nonresidents and citizens of other states, who cannot be sued or made parties. (3) That the bill is without equity.'

On the 16th of November the defendants named in the bill filed a general demurrer to the same for want of necessary parties and for want of equity. On December 10, 1900, the following was entered:

'The motion to discharge the injunction in this case filed October 24, 1900, having been argued and submitted, and having been duly considered, it is now ordered, adjudged, and decreed that said motion be denied and overruled, and that respondents making the same pay all the costs thereof, for which execution may issue.

'At chambers, Montgomery, Alabama, Dec. 10, 1900.

'John Bruce, U.S. District Judge.'

On December 17th an appeal was allowed as follows:

'Whereas, motion having been made to dissolve and discharge an injunction heretofore granted against the defendants in said cause; and whereas, the motion was, on the hearing thereof, denied; and whereas, an appeal is desired by the defendants making said motion, from said order,-- it is ordered that an appeal from said order refusing to discharge and dissolve said injunction, to the circuit court of appeals for the Fifth circuit, be allowed George H. Rowan and John F. Rowan and others, the defendants herein making said motion, returnable to the present term of the U.S. circuit court of appeals for the Fifth circuit, on giving bond in the sum of two hundred ($200) dollars, conditioned according to law; such appeal, however, not to operate as a supersedeas.'

On the 8th of February, 1901, the appellee appeared in this court and moved to dismiss the appeal on the following grounds, to wit:

'(1) For that the order from which this appeal was taken was rendered more than thirty days before the taking of the same, and is therefore barred.

(2) For that said order will not support an appeal. (3) For that this court is without jurisdiction to entertain said appeal.'

Afterwards the appellee, on leave of the court, supplemented the above with the following:

'(4) No assignment of errors was filed in the lower court at or before the taking of the appeal or since.'

On the 11th of February counsel for appellants filed in this court a motion as follows:

'Peyton Rowan and others, appellants in the above cause,...