Tucker v. New Orleans Laundries

• Decision Date: 10 May 1951
• Docket Number: No. 13182.,13182.
• Citation: 188 F.2d 263
• Parties: TUCKER et al. v. NEW ORLEANS LAUNDRIES, Inc. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

188 F.2d 263 (1951)

TUCKER et al. v. NEW ORLEANS LAUNDRIES, Inc. et al.

No. 13182.

United States Court of Appeals Fifth Circuit.

April 5, 1951.

Rehearing Denied May 10, 1951.

Wm. G. McRae, Atlanta, Ga., R. A. Dowling, New Orleans, La., for appellants.

Sidney A. Wolff, New York City, Max F. Goldstein, Atlanta, Ga., Louis L. Rosen, Leonard B. Levy, and Eldon S. Lazarus, all of New Orleans, La., Paul B. Habans, Warren O. Coleman, Rudolph J. Weinmann, Julian B. Humphrey, in pro. per., Azzo J. Plough, Sidney W. Provensal, Jr., Monte M. Lemann, Nicholas Callan, H. Martin Hunley, Jr., Charles Kohlmeyer, Jr., George B. Matthews, and A. P. Miceli, all of New Orleans, La., for appellees,

Before HUTCHESON, Chief Judge, McCORD, Circuit Judge, and WRIGHT, District Judge.

HUTCHESON, Chief Judge.

The protracted nature of this controversy, with its several appearances here, and particularly the fact that, under varying auspices, it continues to drag its slow and cumbersome length along in complete disregard of the judgment of this court in Kohler v. McClellan et al,¹ makes it appropriate that, though this appeal is from a judgment dismissing not on the merits but for want of jurisdiction, we set out something of its history.

When Kohler's appeal from the dismissal on motion of his derivative action, on behalf of Crescent City Laundries, Inc., as to all the causes of action asserted on its behalf for a series of acts done and suffered beginning in 1925, was before us, we held that all but one of them² had passed by the sheriff's sale out of Crescent into New Orleans Laundries, Inc. We, therefore, ordered the judgment affirmed as to all defendants except McClellan and "affirmed as to McClellan * * * on all causes of action except the cause of action growing out of the alleged plan to wreck Crescent, and the consequent sheriff's sale of assets under said plan", and reversed as to this one.

The district court thereupon ordering a re-pleader, Kohler, naming as defendants only the personal representatives of McClellan, who had died, and realleging a protracted plan to improperly appropriate a large part of the assets of the corporation and cause a sheriff's sale of the remainder to the injury of the stockholders, prayed for judgment in favor of the complainant and "any others who may join in this action and contribute to the expense of it".

Allowing the greatest latitude of proof and permitting plaintiff in effect to offer evidence as to all or most of the causes of action originally asserted, the district judge patiently heard the plaintiff out, and, at the conclusion of the evidence, held that the suit as repleaded had been converted into a suit for a direct personal tort to plaintiff and other minority stockholders and was not a stockholders derivative action. Assuming that it was a derivative action and holding that the evidence did not sustain the recovery, he dismissed the suit on both grounds. On appeal³ his judgment was affirmed on the first ground that the suit had been converted into a personal action and that the evidence did not support it as such, and opinion was expressly reserved as to the second ground.

On August 8th, thereafter, appellant, Mrs. Tucker, suing as a stockholder on behalf of herself and others similarly situated, and in the name of Crescent City Laundries,...