United States v. Olzak

• Decision Date: 18 July 1925
• Citation: 6 F.2d 1014
• Parties: UNITED STATES v. OLZAK et al.
• Court: U.S. District Court — District of New Jersey

6 F.2d 1014 (1925)

UNITED STATES v. OLZAK et al.

District Court, D. New Jersey.

July 18, 1925.

Harlan Besson, Asst. U. S. Atty., of Hoboken, N. J.

Jacob W. Silverman, of Newark, N. J., for petitioners.

BODINE, District Judge.

The United States filed a bill in the usual form to abate a nuisance upon certain lands where intoxicating liquor had been sold contrary to law. The petitioners herein assert that they acquired a leasehold interest in the premises after final decree, but without notice of the pendency of the abatement suit, and that they are therefore entitled to be relieved therefrom because the state statute, requiring a lis pendens notice to be filed, was not complied with.

The National Prohibition Law provides that an action to abate a nuisance shall be brought and tried as an action in equity. Title 2, § 22 (Comp. St. Ann. Supp. 1923, § 10138½k). The practice in equity in the federal courts need not and does not conform to the practice in the state courts. Rev. St. § 914 (Comp. St. § 1537). "It has long been settled that the remedies afforded and modes of proceeding pursued in the federal courts, sitting as courts of equity, are not determined by local laws or rules of decision, but by general principles, rules, and usages of equity having uniform operation in those courts wherever sitting." Guffey v. Smith, 237 U. S. 114, 35 S. Ct. 530, 59 L. Ed. 856.

That the petitioners have no rights was settled in Mellen v. Moline Iron Works, 131 U. S. 352, 370, 9 S. Ct. 781, 787 (33 L. Ed. 178):

"We have considered the case just as if the present suit had been brought by Hill. The appellants have no greater rights than he would have if the present suit had been instituted by him; for Mellen, the trustee for Sophia H. Boyd, acquired his rights pendente lite. Hill sold and conveyed to him, after he had been personally served with copies of the order to appear and plead, answer, or demur, to the original and supplemental bills, and only three days before the time fixed for his appearance to the original suit. His sale was more than three months after he was required to appear, and plead, answer, or demur to the cross-bill. That sale and conveyance could not affect the power of the court to proceed to a final decree, so far as his interest in the property was concerned. Nor by such sale and conveyance did Mellen and his cestui que trust acquire any absolute right to become a party to the suit instituted by the furnace company. Purchasers of property involved in a pending suit may be admitted as parties, in the discretion of the court; but they cannot demand, as of absolute right, to be made parties, nor can they complain if they are compelled to abide by whatever decree the court may render, within the...