Carter v. Powell

104 F.2d 428, 1 Fed. R. Serv. 123, 1939 U.S. App. LEXIS 4152

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 13, 1939
• Docket: 9032
• Status: Published

Opinions

HOLMES, Circuit Judge.

By ancillary petition in the court below, the appellees sought and obtained a permanent injunction restraining the enforcement against them of an order, promulgated by the Florida Railroad Commission, which prohibited the operation of a dining car by any railroad in the state, unless the same should be continuously in charge of an employee having the rank of dining car steward. It was alleged that the order was invalid^ because it infringed upon the constitutional rights of the railroad, and unlawfully interfered with the possession and operation of appellees, as receivers. A permanent injunction alone was sought.

On November 7, 1938, the district court allowed the petition to be filed, required notice thereof to be given to appellants, and directed them to show cause before it, on November 19, 1938, in the Southern District of Florida, why the relief sought should not be granted. A copy of the petition and order to show cause were attached to a process issued by the clerk, and served on appellants in the Northern District of Florida. On the date named in the order, the appellants filed a special appearance and moved to dismiss the petition on the ground that the court had not acquired jurisdiction over the persons of appellants, because they could be sued only in the district of their residence. The motion was denied; appellants refused to plead further; and after hearing evidence, a final decree was entered on the same day permanently enjoining the enforcement of the order against the appellees.

The appellants do not attack the original •jurisdiction of the receivership court. By filing a special appearance, they have raised purely a question of venue; they have merely asserted a privilege granted to defendants in actions not local, when sued outside of the district of their residence. They contend that the provisions of section 56 of the Judicial Code, 28 U.S.C.A. § 117, do not destroy the venue privileges of defendants in actions brought by receivers; that the purpose of said section was only to enable receivers to control certain properties outside of the district of their appointment, and not to grant them procedural advantages which the owners of the property did not have. This was the only point they raised in the court below.

We think the district court did not err in upholding its ancillary jurisdiction over appellants. The tracks, road-bed, and other property of a fixed character extended into both judicial districts of Florida. Therefore, when the court below originally acquired jurisdiction in this suit, it issued an injunction restraining all persons from interfering with the possession and management of its receivers. As a court of equity it took possession of the railway property, so that, thereafter, neither the writ of attachment nor execution might seize it. All claims and controversies concerning it were required to be presented to the court of original jurisdiction before the ordinary processes of the law might reach it. Deeming the subject of their trust in danger of loss or destruction, the appellees, by ancillary bill, applied to the court which appointed them to exercise its power to protect the res in their possession.

Since this case comes within the provisions of said section 56, process may issue and be executed throughout the circuit to the same extent as if the property were wholly within the same district. Therefore, process was properly issued by the district court in the Southern District of Florida, and executed ■ in the Northern District 'thereof, where the appellants resided. We think this matter was decided against appellants in Public Utilities Commission v. Landon, 249 U.S. 236, 39 S.Ct. 268, 63 L.Ed. 577, wherein the court approved the ruling and the reasoning in the case of Landon v. Public Utilities Commission, D.C., 234 F. 152. This court has recognized'the jurisdiction of a federal court in Georgia, in a receivership case, to enjoin an officer of the State of Florida from selling a part of the railroad’s property for taxes. Lee, Comptroller v. Freeman, 5 Cir., 79 F.2d 868.¹

Appellants also contend that the order to show cause was insufficient process. This defense comes too late, having been made for the first time in the briefs in this court. The appellants therefore waived all defenses which they did not present by motion or answer, except failure to state a cause of action or lack of jurisdiction of the subject matter. See Rule 12 of Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Furthermore, No. 73 (b) of said rules requires the notice of appeal to designate the judgment or part thereof appealed from; and we have seen that the notice of this appeal designated only that portion of the “order and judgment” denying the motion to dismiss on the ground that the court had no jurisdiction to entertain the suit. As this motion was properly overruled, the regularity of the process and the merits of the matter were not brought to this court for review. The statement of points and designation of contents of record on appeal indicate that nothing else was intended to be relied on by appellants in this court. Under the new rule cited, the appellants were not required to, and did not, appeal from the entire judgment.

Special statutory authority is not necessary to authorize a federal court to exercise its ancillary jurisdiction.² This was not. original but ancillary process. The appellants did not object to it because it did not allow the twenty days for answer fixed by Rule 12. They appeared specially, and, when their plea was overruled, asked for no additional time-, declined to plead further, made no motion to modify the judgment or set it aside, did not appeal from it except in part, did not mention it in their statement of points, and failed to bring a complete transcript of the record into this court.

We are not holding that a defendant may not enter a special appearance under the new rules. Conceding such appearance in this case, we are holding that the motion to dismiss for want of jurisdiction was properly overruled, and that the appellants have limited the scope of this appeal to that particular point. There being no error in the court’s ruling, in this respect, the portion of the judgment appealed from is

Affirmed.

1 See, also, The Business of the Supreme Court of the United States — A Study in the Federal Judicial System, by Felix Frankfurter, 39 H.L.R. 325, 356.

2 Murphy v. John Hofman Co., 211 U. S. 562, 569, 29 S.Ct. 154, 53 L.Ed. 327.