New York, N. H. & H. R. v. Railway Employees' Department

288 F. 588, 1923 U.S. Dist. LEXIS 1675
CourtDistrict Court, D. Connecticut
DecidedMarch 23, 1923
DocketNo. 1614
StatusPublished

This text of 288 F. 588 (New York, N. H. & H. R. v. Railway Employees' Department) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York, N. H. & H. R. v. Railway Employees' Department, 288 F. 588, 1923 U.S. Dist. LEXIS 1675 (D. Conn. 1923).

Opinion

THOMAS, District Judge

(after stating the fa,cts as above). 1. It appears from evidence produced by the defendants, under special appearance, that service was made upon some twenty of the defendants. The returns made by the officers making such service show that this was done on July 29 and 31, 1922. The subpoenas were duly returned to the court by indorsement and subsequent filing. In each instance such return was timely and within equity rule No. 12 (198 C. C. A. xxii, 115 C. C. A. xxii), cited by defendants. The directions in the subpoenas to the marshal as to what he is to do and within what time he is to do it are not the same grammatically or legally as the directions in the subpoenas to the several defendants as to their appearances, answers, and other defenses. These defendants have been properly served and are in court after proper notice. Southern Oil Corp’n v. Waggoner (C. C. A.) 276 Fed. 487.

A return is defined by Stephen on Pleadings as being the account in writing made by the sheriff or other ministerial officer of the manner in which he has executed a writ. Stephen (7th Ed.) p. 20.

Under section 954 of the Revised Statutes (Comp. St. § 1591) the subpoenas could, if there were any necessity for it, be amended as to the time of the return to be made by the marshal. But there can be no prejudice to any defendant from those portions of the subpoena which are directed to the marshal that he should “make due service and return on or before August 1st.” This language could be construed to mean “make due service on or before August 1st and return,” etc.

If there were any defect in the process, so that it seemed to be in need of an amendment, such amendment would be allowed as a matter of course under section 954. Eberly v. Moore, 24 How. 147, 16 L. Ed. 612; In re Griggs, 233 Fed. 243, 147 C. C. A. 249; Cushing v. Laird, 6 Fed. Cas. No. 3,508; Fountain v. Detroit, etc., Ry. (D. C.) 210 Fed. 982; Mechanical Appliance Co. v. Castleman, 215 U. S. 437, 443, 20 Sup. Ct. 125, 54 L. Ed. 272; Nickerson v. Boiler Co. (D. C.) 223 Fed. 843; Phoenix Insurance Co. v. Wulf (C. C.) 1 Fed. 775, 778; Elson v. Town of Waterford (C. C.) 135 Fed. 247.

Equity rule No. 19 (198 Fed. xxiii, 115 C. C. A. xxiii) is mandatory that this court is to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

The parties are now before the court on a notice of motion directed by the court, and not by virtue of the process. American Steel & Wire Co. v. Unions 1 and 3 (C. C.) 90 Fed. 598.

2. Defendants contended further that under section 20 of the Clayton Act the court has no jurisdiction because the application for the restraining order or the injunction was not in writing and sworn to by the applicant or its agent or attorney. In support of this point counsel calls attention simply to the motion for the injunction and temporary restraining order signed by solicitor for plaintiff. This motion is not verified. It is in the usual form, reciting that the plaintiff upon [592]*592the verified bill of complaint and affidavit filed therewith, moves the court for a temporary injunction. It contains the names of all of the defendants and their residences, and it specifies all acts sought to be enjoined. With the motion was submitted the bill of complaint, verified as to all allegations of fact necessary to give jurisdiction by the president of the plaintiff corporation and upon his own knowledge. There was also submitted with the notice of motion the affidavit of the general manager of plaintiff company, setting forth with considerable detail the direct results to plaintiff from about 6,000 of its employees having gone on strike July 1, 1922, because of their unwillingness to accept the awards established by the Labor Board. This' affidavit recites particularly the difficulties of plaintiff in operating its railroad, and many cases of assault, intimidation, and violence growing out of the strike. It concludes by asking for a restraining order prior to the hearing herein.

The question is whether the verified bill may be considered as the application for the order within the meaning-of section 20, or whether the motion signed by plaintiff’s counsel may be singled out as being that application. It will be seen that, in order to comply with the other provisions of section 20 as to irreparable injury, the lack of an adequate remedy at law, and the description with particularity of the property or property rights involved, the motion signed by counsel, even if verified, would fall far short of satisfying the statute. It would in fact have to contain practically all of the matter which is set forth in the complaint. It is probable that, if a verified bill of complaint and the general manager’s affidavit alone had been presented to the court in chambers, they would have been considered as ample fulfillment of the requirements of the statute. The lack of a verification on the motion gapers signed by plaintiff’s counsel does not appeal to me as destroying or affecting in any degree the form of the application as a whole, embracing all three documents. It would be unusual in our practice for an attorney to verify his motion papers, the same being intended merely to call to the attention of the court the nature of the application appended thereto. I am satisfied that the bill of complaint, together with the affidavit of the general manager calling for the con-traordinary remedy of a restraining order, comply with the statute.

The established practice is to the same effect. In Gasaway v. Borderland Coal Corp’n (C. C. A.) 278 Fed. 56, at page 64, it appears from the opinion that the application consisted of the bill and affidavit showing certain trespasses on the company’s rights and interference with interstate commerce. In Alaska S. S. Co. v. International Longshoremen’s Ass’n (D. C.) 236 Fed. 964, the plaintiff made a motion on its verified bill for a temporary restraining order, which was granted. The court said, at page 966:

“Upon motion of the complainant, based upon the verified bill, a temporary-restraining order was issued on the 7th of July, and the matter set for hearing on July 15th on application for temporary injunction.”

In Dail-Overland Co. v. Willys-Overland, Inc. (D. C.) 263 Fed. 171, 21 affidavits were filed with the complaint showing acts of violence and intimidation, and a restraining order was thereon issued against the [593]*593manufacturing company defendant and against the International Asr sociation of Machinists, which were on strike. The defendants appealed from the final order granting a permanent injunction, but the order was affirmed in Quinlivan v. Dail-Overland Co., 274 Fed. 56, at page 64, in which the court said:

“The. allegations of the original' bill, as well as those of both cross-bills, * * * state a flagrant case of unlawful interference. * * * Taking, as we must, the allegations of fact contained in the bill and cross-bills at their face value, * * * the complaining parties * * * were entitled to relief.”

It is evident from this case that the bill was the basis of the application for both the preliminary and the permanent injunction.

In City of Louisville v. Louisville Home Telephone Co. (C. C. A.) 279 Fed.

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Related

Mechanical Appliance Co. v. Castleman
215 U.S. 437 (Supreme Court, 1910)
Phœnix Insurance v. Wulf
1 F. 775 (U.S. Circuit Court for the District of Indiana, 1880)
Elson v. Town of Waterford
135 F. 247 (U.S. Circuit Court for the District of Connecticut, 1905)
Fountain v. Detroit, M. & T. S. L. Ry. Co.
210 F. 982 (N.D. Ohio, 1913)
Nickerson v. Warren City Tank & Boiler Co.
223 F. 843 (E.D. Pennsylvania, 1915)
In re Griggs
233 F. 243 (Eighth Circuit, 1916)
Montgomery v. Pacific Electric Ry. Co.
258 F. 382 (Ninth Circuit, 1919)
Dail-Overland Co. v. Willys-Overland, Inc.
263 F. 171 (N.D. Ohio, 1919)
King v. Weiss & Lesh Mfg. Co.
266 F. 257 (Sixth Circuit, 1920)
Davis v. Henry
266 F. 261 (Sixth Circuit, 1920)
Quinlivan v. Dail-Overland Co.
274 F. 56 (Sixth Circuit, 1921)
Charleston Dry Dock & Machine Co. v. O'Rourke
274 F. 811 (E.D. South Carolina, 1921)
Southern Oil Corp. v. Waggoner
276 F. 487 (Fifth Circuit, 1921)
Gasaway v. Borderland Coal Corp.
278 F. 56 (Seventh Circuit, 1921)

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Bluebook (online)
288 F. 588, 1923 U.S. Dist. LEXIS 1675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-n-h-h-r-v-railway-employees-department-ctd-1923.