Yager v. Liberty Royalties Corporation

• Decision Date: 22 October 1941
• Docket Number: No. 2298.,2298.
• Citation: 123 F.2d 44
• Parties: YAGER v. LIBERTY ROYALTIES CORPORATION et al.
• Court: U.S. Court of Appeals — Tenth Circuit

123 F.2d 44 (1941)

YAGER v. LIBERTY ROYALTIES CORPORATION et al.

No. 2298.

Circuit Court of Appeals, Tenth Circuit.

October 22, 1941.

Frank Settle, of Tulsa, Okl. (Eugene O. Monnet and Sam Clammer, both of Tulsa, Okl., on the brief), for appellant.

O. L. Lupardus, of Tulsa, Okl. (Underwood, Canterbury, Pinson & Lupardus, of Tulsa, Okl., on the brief), for appellees.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judge.

BRATTON, Circuit Judge.

The trustee of United Royalty Company, a trust estate, sometimes herein called United, filed proof of claim against Liberty Royalties Corporation, a corporation in process of reorganization under section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, sometimes herein called Liberty. The claim was for $52,461.27, with interest, and for 592,742 units of United. The trustee of Liberty filed a motion for judgment on the ground that the pleadings and the record disclosed that the claim should be disallowed in its entirety. An amended proof of claim was subsequently filed which went more into detail respecting the facts. The trustee of Liberty objected to the amended claim on the grounds that it failed to state facts sufficient to constitute a cause of action or any basis for equitable relief; that the claim, if any ever existed, was barred by limitation; that it had been adjudicated adversely to the contention of the claimant in an action in the state court, which adjudication constituted a bar and an estoppel; and that the claimant was otherwise estopped to assert the claim. The court entered an order reciting that, upon consideration of the objections to the claim and the motion for judgment on the pleadings, and after hearing arguments of counsel, the motion was sustained and the claim disallowed in its entirety. The trustee of United Appealed.

A motion was filed in this court to dismiss the appeal on the ground that the record was not filed and the action docketed within the time provided by law and the rules of this court, and that appellant did not comply with the requirements of law and the rules of this court in perfecting the appeal. The claim was denied on January 6, 1941, and on January 16 written notice of appeal was filed. On February 25 an order was entered extending the time to April 3 for filing the record and docketing the action on appeal; on April 2 a similar order was entered extending the time to April 14; on April 14 a like order was entered extending the time to April 16; and the record was filed and the action docketed on the date last mentioned. On April 14 appellant filed assignments of error and a praecipe, and served copies on the appellee; and on the succeeding day he filed what was denominated assignment of errors and statement of points upon which he intended to rely on appeal, and an amended praecipe, and copies were served on the appellee. Rule of Civil Procedure 75(a), 28 U.S.C.A. following section 723c, provides that promptly after an appeal has been taken the appellant shall serve on the appellee and file with the district court a designation of the portions of the record, proceedings and evidence to be contained in the record on appeal, and that the other party to the appeal may within ten days thereafter file and serve a designation of additional portions of the record, proceedings and evidence to be included; and rule 75(d) provides that in the event the appellant does not designate for inclusion the complete record and all proceedings and evidence, he shall serve with his designation a concise statement of the points on which he intends to rely. Nothing was filed called a designation of the portions of the record, proceedings and evidence to be contained in the record on appeal. But the document called a praecipe designated the pleadings which the appellant desired to be contained in the record, and there was no evidence to be included. While the praecipe did not constitute a literal compliance with the rule in respect to content of the designation, it did advise the appellee of the parts of the record which the appellant desired to be incorporated in the record, and the assignments of error indicated the contentions which would be advanced. The rule further requires that the designation shall be filed promptly after the appeal has been taken. The praecipe was not filed until eighty-eight days after the filing of the notice of appeal, and the assignments of error were filed one day later. That did not constitute compliance with the rule in respect to time. Still the record was filed and the cause docketed in this court within the extended time allowed for that purpose, and the appellee was not prejudiced in its right to have included in such record anything additional to that designated by the appellant, or in understanding and meeting the points on which the appellant relies. The departures from the rules on which the motion to dismiss is predicated are emphatically disapproved, but the circumstances do not call for the extreme penalty of dismissal of the appeal. Cf. Adams v. New York, C. & St. L. R. Co., 7 Cir., 121 F. 2d 808. The motion to dismiss is denied.

The first ground of objection to the proof of claim was failure to state facts sufficient to constitute a cause of action or any basis for equitable relief against Liberty or its estate. That ground and the motion for judgment on the pleadings admitted all matters well pleaded in the proof of claim. It was alleged in the claim that United was created in 1922 for the purpose of acquiring an undivided one-half interest in the oil and gas and other minerals in 50,000 acres of land by exchanging therefor units or undivided interests of the authorized issue of 2,000,000 units; that seventy per cent of such units were to be issued to the owners of land in exchange for royalty rights, and thirty per cent to the trustees for their services in acquiring the royalties for a pool; that in June, 1929, 800,000 units had been issued to owners of land,...