Taylor v. Easton
| Decision Date | 23 June 1910 |
| Docket Number | 3,113 |
| Citation | 180 F. 363 |
| Parties | TAYLOR v. EASTON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
[Copyrighted Material Omitted]
T. H Null and Harris Richardson, for appellant.
Edward C. Eliot (E. T. Taubman and G. N. Williamson, on the brief) for appellee.
Before SANBORN, Circuit Judge, and RINER and W. H. MUNGER, District judges.
In 1900, in a suit in equity brought in the Circuit Court for the District of South Dakota, by one Smiley against the Building & Loan Association of Dakota, such proceedings were had that Maris Taylor was appointed receiver for said corporation. The usual proceedings in said action were had towards closing up the estate of said Building & Loan Association, and in August, 1902, the receiver filed his final report and petition for discharge. An order was entered for hearing on the report and petition, due notice of which was given by publication, the report of the receiver was referred to a master, and in March, 1903, the court approved the master's report, directed that certain moneys on hand be paid in subject to the further order of the court, and entered an order discharging said Taylor as receiver, and releasing him from all further liability. In 1908 one C. F. Easton, a stockholder and creditor of said Building & Loan Association, filed a petition of intervention in said action, which petition of intervention, upon hearing, was allowed by the court to be filed; said petition of intervention alleging that there were still assets unadministered belonging to said Building & Loan Association, and asking for the appointment of a receiver to administer the same. Upon hearing the court appointed C. F. Easton receiver. Said Easton thereupon, as receiver, filed in said court what was denominated a 'petition,' setting forth facts showing that said Taylor had misappropriated funds which came into his hands as receiver, for which he did not account, etc.; that his report to the court was false and untrue; and praying, among other things, that an order issue directed to said Maris Taylor, directing him to show cause before the court, at a time and place specified, why the provision of the order made in 1903, releasing Taylor from further liability, should not be vacated and set aside, and why a certain order, confirming the sale of residuary assets made in 1902, should not be set aside and vacated. There was not the usual prayer for subpoena. The court issued an order, requiring said Taylor to appear upon a given date and show cause why the former orders and decrees should not be modified in these respects. Pursuant to such order said Taylor appeared and objected to the right or authority of the court to make the order prayed for or any order whatsoever, in the proceeding, on the ground that the final orders and decrees of the court could not be attacked or vacated or set aside after the close of the term at which said orders had been entered. He also filed an answer to the petition of the receiver, denying the principal allegations thereof, and also filed a demurrer. The demurrer was based upon the ground: First, that there was a defect of parties plaintiff; second, that the court had no jurisdiction to hear and determine the matters in controversy, in that it appeared that the orders attempted to be set aside were entered by the court at a term of court long since closed; and, third, that the bill did not state a case, or contain any matter of equity entitling plaintiff to the relief asked. The objections to the jurisdiction and the demurrer were each overruled, to which proper exceptions were taken. The case was then referred to a master, who found in substance that Maris Taylor had not truly and faithfully administered all of the assets of said Building & Loan Association; that he had misappropriated large amounts of the assets to his own use; that he had made false and misleading reports to the court, and had thus, by his fraud, induced the court to grant the discharge and grant the release from liability, etc.
From the order of the court, appointing Easton receiver and vacating so much of the former judgment as released Taylor from all liability and vacating the order of confirmation, this appeal has been taken.
Various assignments of error were filed, among them being that Taylor, having removed from the state of South Dakota into the state of Washington, and without the jurisdiction of the court, the court had lost jurisdiction and control over said Taylor and could not reacquire jurisdiction by citation or order to show cause.
Appellee moved to dismiss the appeal on the ground that, as the questions presented by the appeal relate only to the jurisdiction of the Circuit Court, appeal should have been taken directly to the Supreme Court and not to this.
Thereafter appellant Taylor filed in this court a paper which, after entitling the case, was as follows:
'Appellant, at the suggestion of the court, hereby declares that, upon his appeal from the order of the lower court herein, he will rely only on the foregoing jurisdictional questions, relating to the power of the Circuit Court to appoint Easton as receiver, and to enter the final order of March 24, 1909, vacating the final decree of April 1, 1903, discharging appellant from all liability as receiver.'
The original assignment of error that the court did not acquire jurisdiction over the person of Taylor by the issue and service of an order to show cause, Taylor being a resident of Washington, and out of the jurisdiction of the court, was waived by the paper filed in this court. Even though it was not waived, there is nothing in the record showing that the jurisdiction of the Circuit Court over the person of Taylor was challenged in that ...
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