De Wagenknecht v. Stinnes, 13926.

• Decision Date: 27 November 1957
• Docket Number: No. 13926.,13926.
• Citation: 250 F.2d 414
• Parties: Elsa W. DE WAGENKNECHT et al., Appellants, v. Mrs. Hugo STINNES et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

250 F.2d 414 (1957)

Elsa W. DE WAGENKNECHT et al., Appellants, v. Mrs. Hugo STINNES et al., Appellees.

No. 13926.

United States Court of Appeals District of Columbia Circuit.

Argued November 4, 1957.

Decided November 27, 1957.

Mr. Ralph G. Albrecht, New York City, with whom Mr. John Geyer Tausig, Washington, D. C., was on the brief, for appellants. Mr. Henry F. Butler, Washington, D. C., also entered an appearance for appellants.

Mr. James H. Mann, Washington D. C., with whom Mr. Dean B. Lewis, Washington, D. C., was on the brief, for appellee Mrs. Hugo Stinnes, Sr. Mr. John W. Pehle, Washington, D. C., also entered an appearance for appellee Mrs. Hugo Stinnes, Sr.

Mr. Irwin A. Seibel and Miss Marbeth A. Miller, Attorneys, Department of Justice, entered appearances for appellees Herbert Brownell, Jr., and Atlantic Assets Corporation.

Before PRETTYMAN, FAHY and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

On January 12, 1957, Mrs. Hugo Stinnes, Sr., a German national and nonresident of the District of Columbia filed a petition for an order, pursuant to Rule 27(a) (1) and (2) Fed.R.Civ.P.,¹ authorizing the taking of the deposition of Thorkild Rieber in New York City in support of her claim to certain property presently vested by the Attorney General under the Trading with the Enemy Act, as amended² (hereinafter referred to as the Act).

The petition alleges that on the several dates of the vesting orders Mrs. Stinnes, as sole legatee of Hugo Stinnes, Sr., was directly or indirectly the beneficial owner of all or substantially all of the properties so vested. She avers that she is advised that she is ineligible at this time for return of the vested property under § 32 of the Act, and that she does not qualify to be a plaintiff in an action under § 9(a) thereof against the Attorney General for the return of the property, for the reason that she was an enemy within the meaning of the Act at the time the property was vested. She has filed with the Attorney General a notice of claim with respect to the properties so vested.

Appellants and Atlantic Assets Corporation have also filed administrative claims to the same property, and have instituted actions against the Attorney General claiming part of it, alleging that they and not Mrs. Stinnes were the prevesting owners of such property.³ Mrs. Stinnes is not a party to those suits.

Mrs. Stinnes further alleges that she or her successors in interest intend to bring one or more actions cognizable in a court of the United States for the unlawful withholding from her of her properties, against the following adverse parties: (1) the Attorney General of the United States, appellee herein; (2) Elsa W. de Wagenknecht, appellant herein; (3) N. V. Edmund Wagenknecht's Handel Maatschappij, appellant herein; and (4) Atlantic Assets Corporation, appellee herein. The prospective litigation is based upon the happening of either of two contingencies: (1) enactment by Congress of legislation returning enemy property to its former German owners; or (2) the returning of some or all of the property by the Attorney General to appellants and Atlantic Assets Corporation, appellee herein.

Mrs. Stinnes has already perpetuated her own testimony against the same expected adverse parties as are named in the petition here under review.⁴ The present petition has for its purpose perpetuation of the testimony of Mr. Rieber who is, it is claimed, an important witness in the four civil actions referred to above and whose testimony is expected to be to the effect that petitioner was the owner of a substantial part of the vested property. Mrs. Stinnes attempted to accomplish service on appellants by service on their present counsel; however, appellants' counsel disclaimed authority to receive or accept service for them.

Thereafter, on February 7, 1957, the District Court directed service to be made by mail pursuant to Rule 27(a) (2), Fed.R.Civ.P., and appointed Ralph G. Albrecht as attorney to represent appellants "but without any compensation to be paid by the petitioner." Appellants filed an opposition contesting the jurisdiction of the court to grant the petition, and for an order to require petitioner to pay to their court-appointed attorney a reasonable attorney's fee and expenses already incurred in connection with the petition, and for other relief including an attorney's fee if the deposition were authorized. After a hearing, the District Court, with the consent of the Attorney General and Atlantic Assets Corporation, but over the opposition of Mr. Albrecht, entered an order granting the petition to perpetuate Mr. Rieber's testimony. No provision was made for attorney's fees for Mrs. De Wagenknecht's attorney. This appeal followed.

The use of Rule 27 to perpetuate testimony is an ancillary or auxiliary proceeding to prevent a failure or delay of justice, by preserving and registering testimony which would otherwise be lost before the matter to which it relates could be made ripe for judicial determination. It seems to us that the present case is one coming specifically within the rule cited. All of the elements necessary under Rule 27 are present. Certainly, from the facts disclosed by the record, this is a matter "that may be cognizable in any court of the United States." That there will be litigation growing out of the assets vested, and that the principal appellant, principal appellee and the Attorney General, as Alien Property Custodian, will be parties thereto seem altogether probable. Mrs. Stinnes seeks by this proceeding to perpetuate the testimony of a person who has knowledge of certain events and transactions, many of which took place years ago. There can be no certainty that this testimony will still be available when the controversy is ready for litigation, since the witness is at present seventy-four years of age.

At the present time, Mrs. Stinnes cannot, for reasons above stated, sue the Attorney General for the return of the property since she does not meet the requirements of § 9(a) of the Act. Nor can she sue appellants at this time to determine her title to the property because they do not have possession. Her only recourse is in future litigation. There is reason to believe that in either of two contingencies she will be a party to litigation to try the issue of her ownership in such property. These contingencies are: (1) should appellants be successful in any of their present or future administrative or judicial claims, so that the Attorney General decides or is directed to give over any part of the property formerly owned by Mrs. Stinnes to either appellant, Mrs. Stinnes may then be in a position to institute an action against such appellant or appellants in the United States District Court for the District of Columbia to recover such property; (2) should legislation be enacted⁵ returning vested property to its former German owners, Mrs. Stinnes expects to bring an action in the United States District Court for the District of Columbia against the Attorney General if he should refuse to recognize her claim, or against appellants and the Attorney General, if the Attorney General should take action to surrender the property to them pursuant to such legislation. Conversely, if her own claim is recognized and the property is returned to her, Mrs. Stinnes expects that appellants will institute suit against her.

Appellants contend that the District Court lacked jurisdiction to grant the petition, on the theory that Mrs. Stinnes has no present right of action cognizable in any court of the United States and, unless there is a substantial likelihood that the expected right of action will mature the court cannot grant the petition.

Whether there is a sufficient likelihood that the expected litigation will eventuate is a matter for the sound discretion of the court to which application to perpetuate is made. This is made clear in the case of...