Schmitt v. Lamb, 162.

• Court: U.S. District Court — Northern District of Mississippi
• Writing for the Court: HOLMES
• Citation: Schmitt v. Lamb, 43 F.2d 770 (N.D. Miss. 1930)
• Decision Date: 09 October 1930
• Docket Number: No. 162.,162.
• Parties: SCHMITT v. LAMB.

43 F.2d 770 (1930)

SCHMITT v. LAMB.

No. 162.

District Court, N. D. Mississippi, Delta Division.

October 9, 1930.

Maynard, FitzGerald & Venable and Roberson & Cook, all of Clarksdale, Miss., and Green & Green, of Jackson, Miss., for plaintiff.

Wells, Jones, Wells & Lipscomb, of Jackson, Miss., and Butler, Lamb, Foster & Pope, of Chicago, Ill., for defendant.

HOLMES, District Judge.

The plaintiff, William A. Schmitt, was appointed receiver by this court under a final decree rendered in a suit by Sterling B. Cramer, and other judgment creditors of W. P. Holland, to set aside certain fraudulent conveyances made by him to his wife, Florence T. Holland, and to subject the property so conveyed to the payment of the judgments. No receiver had been appointed during the pendency of the suit.

William E. Lamb, a citizen of Illinois, is an attorney at law, residing in Chicago, and represented Mrs. Holland in the above suit, coming to Mississippi for that purpose and devoting himself exclusively to his duties as attorney in the preparation of her defense and in appearances in court.

During the trial of the case and near its end, on petition of the plaintiffs, Mr. Lamb was cited to show cause why he should not be punished for contempt of court in receiving various sums of money aggregating over $70,000, which, it is claimed, were paid to him by Mrs. Holland, in the guise of legal fees, but which, in fact, belonged to the judgment debtor.

While the contempt proceeding was still pending, and on the same day that a final decree was entered in the original suit, this ancillary proceeding was filed by the receiver against the attorney to recover the above sums paid to him by Mrs. Holland, which, it is claimed, were trust funds in her hands and remained such in the hands of Lamb who had received them with full knowledge of the facts.

The defendant moves to quash the process and dismiss the ancillary proceeding against him on the ground that he was exempt from service of civil process upon him in this state, because at the time he was present (1) as attorney for Mrs. Holland, and (2) in response to the citation for contempt.

It is contended by the plaintiff that at the time process was served upon the defendant his presence in the state was not rendered necessary either by his duties as attorney or to respond to the citation for contempt.

I think this is too narrow a view to take of the attorney's attitude. After the citation for contempt was issued, while commendably holding himself aloof from the main case, he remained Mrs. Holland's attorney and doubtless intended to resume actively his duties as such, if the contempt proceeding should be disposed of, and he might do so without embarrassment, before the final decree was entered. But, while continuing in this attitude, the final decree was entered, and on the same day this suit was filed and process served upon the defendant, while he was preparing to take a train for his home in Chicago.

It is also true that a continuance had been agreed upon for the contempt hearing, but the order was not made by the court until the very day process herein was served. Under these circumstances Mr. Lamb had the right to remain in the state until the agreement was formally approved by the court and the order duly entered.

Accordingly, I see no reason to doubt that at the time process was served upon the defendant in this proceeding he was a non-resident attorney, in the state solely for the purpose of representing a litigant in this court, and while actually so engaged was cited for contempt of court at the instance of the plaintiffs in the suit in which he was appearing.

There is no allegation of any misconduct in this state by the defendant and no fact averred to overcome the inference that the alleged fees were received by him before he came here.

The motion to quash should be sustained because the defendant was exempt from the service of civil process upon him while in attendance...