Dahlgren v. Pierce

263 F. 841, 1920 U.S. App. LEXIS 2098

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 6, 1920
• Docket: No. 3291
• Status: Published

Opinion

PER CURIAM.

[1] 1. The bill filed by the'trustee was properly enough denominated “supplemental and ancillary,” and the trustee thereby rightfully called upon the court below to give instructions to her as to her current duties and to construe the will as far as necessary for that purpose. The estate and the trust were rightfully brought into that court in the first instance,³ and it had never lost jurisdiction for the due administration of the trust. The right to give instructions to the trustee is inherent in such situation, and power to construe the will must underlie the right to give instructions. We do not understand these propositions to be seriously questioned, except that it is insisted that in so far as the bill sought a decree for the return of what had been paid to-Dahlgren, Jr., it went beyond a truly ancillary character and became original. This insistence is not now important.

[2] 2. Cases may be conceived where the will might be construed and a decree made which would be effective to protect the trustees, and yet where it would not be necessary to make defendant every person claiming to be a beneficiary. Here Dahlgren, Jr., has been, for 15 years and by all parties concerned, recognized as a beneficiary. The doubtful question of construction affects him, and him alone, upon one side of the controversy. Not only is he of full age, but there is no one else in his specific class, and there may never be. The other parties to the case, who constitute with him the general class of heirs at law, all have adverse interests, which alone would prevent the application of the theory of virtual representation. Pugh v. Frierson (C. C. A. 6) 221 Fed. 513, 527, 137 C. C. A. 223. A decree which would not hind him would be wholly ineffective; and that he would not be bound, unless made a defendant, is, under these circumstances, entirely plain. 20 R. C. L. 703, tit. “Parties,” § 45.

[3] 3. This trust estate consisted of real and personal property, all of which was constructively, and much of which was actually, within the Southern district of Ohio, not to say that it was in the custody of the court. A suit to determine the rights of the parties therein is, in many aspects, a suit in rem. This suit was brought to enforce the claim of some of the parties to the whole of such property, and to remove the cloud upon the title thereto caused by the adverse claim of Dahlgren, Jr. It is within the very words, as well as within the substance, of section 57. That the immediate question pertains only to income does not make the case less clear. The income on hand when the supplementary bill was filed and that which has since accumulated is in the custody of the court through its trustee; upon a true alignment of the parties, Dahlgren, Jr, is sole defendant, and the others (presently interested) are all plaintiffs; they claim the whole of the income, and seek to enforce that claim by this suit; he claims

an interest in it, and this suit is brought to declare his claim unfounded. We do not find any precedent especially instructive; but the cases where the contrary conclusion was readied are so plainly distinguishable that it is not necessary to point out the difference. See, e. g, Ladew v. Tennessee Co, 218 U. S. 357, 367, 31 Sup. Ct. 81, 54 L. Ed. 1069; Chase v. Wetzlar, 225 U. S. 79, 89, 32 Sup. Ct. 659, 56 L. Ed. 990; Fayerweather v. Pitch (C. C.) 89 Fed. 385; York Bank v. Abbott (C. C.) 139 Fed. 988, 993, and cases cited. See, also, U. S. v. So. Pac. (C. C.) 63 Fed. 481, and cases cited. Wc conclude that the court below hail ample power to bring in Dahlgren, Jr, under section 57, and subject him to a decree declaring whether or not he is entitled to share in the funds for current distribution. Whether this power would extend to a decree for the repayment of past payments we do not decide.

[4] 4. His conduct in the case did not amount to a waiver of the objection to personal jurisdiction nor to a general appearance. -It is true tlia-t if, before his challenge to the personal jurisdiction has been overruled, a defendant questions the jurisdiction of the court over the subject-matter, or tenders an issue upon any meritorious question, he has often been considered thereby to waive any objection to jurisdiction over his person; but the facts of this case do not support the application of this rule. The motion to vacate, as it was filed and entered, was expressly declared to be a special appearance for the purposes of the motion only, and did not rest upon any grounds excepting those which fairly pertained to the personal jurisdiction over Dahlgren rather than jurisdiction of the subject-matter. The allegation that petitioner was of full age and that his guardian was adversely interested, and so incompetent to consent, were only important to destroy the prima facie consent which had been given. They operate, therefore, merely to amplify and support the allegation that the order had been ex parte.

The further allegation that the fund sought to be reached is subject to the jurisdiction of the Surrogate’s Court in New York carries something of the color of a challenge to jurisdiction over the subject-matter; but we think it is only color. It is collateral to the substantial fact that the funds “belong to the petitioner and are situated in the foreign district, where he resides, and that the court cannot make an order disposing of them without service of process upon, or other notice to, die nonresident owner. The motion is analogous to one to quash process which has been personally served, but irregularly, and wholly analogous to a motion to vacate an attachment which has been wrongly issued. To say that by this motion Dahlgren, as petitioner, had in effect entered his general appearance, would be to give it a result so contrary to its obvious and expressed intention that the conclusion would not be supported by any well-considered precedent which has been brought to our attention.

We come, tiien, to the result of the conduct of petitioner’s counsel in arguing, also, that the motion to vacate ought to be granted, because the bill was not good and should be dismissed. íf a motion to dismiss had been made upon these grounds before the motion to vacate had been passed upon, it might well have been a waiver; but it will be noticed that petitioner had then never asked any relief, except that the motion to vacate should be granted. The written brief and argument, which the District Judge found to be equivalent to a general appearance, concluded: “We respectfully submit that the order should be set aside.” There was then no other issue, either’of law or of fact.

The question of general appearance is one of intent, actual or implied, and where the whole purpose of defendant’s application to the court, is to set aside an order because it has been made without personal jurisdiction over him, the conduct which will make the motion unavailing and destroy its basis must be clear and unequivocal. It is a matter of everyday experience that, upon the argument of a challenge to the personal jurisdiction, questions upon the merits will collaterally arise. Not uncommonly the court thinks that it may not be necessary to decide a difficult question of personal jurisdiction, because there is no good case presented upon the merits, and the court will make the suggestion and desire to hear counsel upon it. Whether argument of this kind comes in response to the court’s suggestion, or comes voluntarily from defendant’s counsel by way of good measure in giving reasons why the actual motion should be granted, we think such argument should not be held, of itself and necessarily, a waiver of the objection which is being so carefully preserved; and, unless there is a rule of law imperatively declaring such a waiver, it ought not to be found from the circumstances of this case.

We find no persuasive holding that such a waiver must be inferred, and we refer to some of the cases cited by appellee in support of such an inference, merely to show how far they are from having such supposed effect. In Jones v. Andrews, 10 Wall. 327, 19 L. Ed. 935, a deumrrcr for want of equity was joined with the motion to dismiss for lacle of personal jurisdiction. In Western Co. v. Butte Co, 210 U. S. 368, 28 Sup. Ct. 720, 52 L. Ed. 1101, substantially the same situation existed. In Long v. Newhouse, 57 Ohio St. 348, 49 N. E. 79, the defendant had asked action to reform the pleadings before he raised the personal question. On the other hand, our conclusion that a waiver ought not to be inferred is illustrated by what is said in Citizens’ Co. v. Ill. Cent. Co, 205 U. S. 46, 59, 27 Sup. Ct. 425, 51 L. Ed. 703. See, also, our recent decision in Board v. Keil, 259 Fed. 76, 81,-C. C. A. -.

5. Although it must follow that there was not sufficient jurisdiction over Dahlgren, Jr, to support the further proceedings which were taken, and that the final decree must be vacated, yet it is apparent that the necessary personal jurisdiction can easily be acquired, and probably will be, and that in this way the ultimate question of construction of the will as to income may again be presented, so that it must be decided. In this situation, we have been inclined to consider this question now ourselves, with a view to aid in ending the litigation; but we conclude that it is not best to do so, in the present state of the record. It is enough to say that our disposition of the case is not to be taken as implying approval of the conclusion reached below, and that the subject should receive, as it doubtless will, further careful thought.

The decree is reversed, and the case remanded for further proceedings in accordance with this opinion.

3 The will, attached as an exhibit to the original bill, provided that upon the death of the trustee named a new trustee should be appointed by “the court whose jurisdiction and duty it was to see that the trusts herein created are carried into execution.” It then provided that the trustee should act •continuously under the direction of “said court,” making reports to it, and •clearly demonstrated the testator’s intent that a court of equity should take control and administration of the trust. The original bill alleges that this “large trust estate” has been, by the trustee’s death, “left without care or control,” and prays the appointment of a new trustee to act under the will, .and for general relief.