United States ex rel. Sutton v. Mulcahy

169 F.2d 94, 1948 U.S. App. LEXIS 4071

• Court: Court of Appeals for the Second Circuit
• Decided: June 30, 1948
• Docket: No. 264, Docket 20975
• Status: Published

Opinions

SWAN, Circuit Judge.

By writ of habeas corpus the relator sought release from imprisonment under an order which adjudged him in civil contempt of court, imposed a fine of $22,000, and committed him to jail until the fine should be paid or he should be discharged according to law. The contempt was committed in a suit brought by Jack Menashe against the relator and others to obtain the appointment of an ancillary receiver in aid of a suit for partnership accounting which was pending in the circuit court of the First Judicial Circuit in the Territory of Hawaii. In the habeas corpus proceeding Menashe was impleaded as a respondent, and he is the appellee who actively opposes the relator’s appeal from the order discharging the writ. The appellant’s contention is that the court which adjudged him in contempt lacked jurisdiction.

Although the record on appeal makes a wholly inadequate disclosure of the proceedings in what we shall for convenience call the “ancillary suit,” it has been possible to piece together what is believed to be an accurate statement. The complaint in the ancillary suit alleged that Menashe resided in New York and Sutton in the Territory of Hawaii,¹ referred to the suit for a partnership accounting brought by Menashe in Hawaii, the appointment of a receiver therein who was still acting as such, and the existence of partnership assets within the city of New York; it prayed for the appointment of an ancillary receiver of all partnership assets and for an injunction restraining the defendants from interference with such ancillary receiver. On January 10, 1947 Judge Rifkind appointed a temporary ancillary receiver. Sutton then moved to vacate the appointment and to dismiss the complaint for lack of jurisdiction. Judge Hulbert overruled this motion on February 5, 1947 with an opinion reported in Menashe v. Sutton, D.C., 71 F.Supp. 103. Thereafter Sutton filed his answer asserting that he is a resident of the state of New York, but later withdrew it and filed a paper entitled “Consent to Judgment.” In July 1947, over the plaintiff’s objection, a judgment was signed by Judge Holtzoff, sitting in the southern district by assignment, which “granted judgment against the defendants * * * for the relief demanded in the complaint,” made permanent the appointment of the temporary ancillary receiver and directed that partnership assets be delivered to him. On September 11, 1947 Judge Medina made an order appointing a special master to take testimony for the purpose of discovering assets of the partnership, and directing Sutton to appear before the special master to give testimony. A temporary stay of that order was granted to enable the defendants to apply for a stay pending appeal but we denied the stay on the ground that the order of September 11th was not appealable. After hearings before the special master, Menashe brought on a motion to punish Sutton for a civil contempt in wilfully disobeying Judge Medina’s order of September 11th by refusing to answer questions and by answering evasively and without candor or good faith. This motion was heard by Judge Coxe who entered an order on November 21, 1947 adjudging Sutton guilty of a civil contempt, fining him $22,000 and directing him to pay the fine to the permanent ancillary receiver, ordering that in default of payment he be taken into custody by the United States Marshal and confined in a federal jail, and granting Sutton an opportunity to purge himself of his contempt by testifying fully and not evasively before the special master. On December 11, 1947 Sutton appeared before the special master but refused on advice of counsel to answer any questions propounded by the attorney for Menashe. On December 15, 1947 Judge Coxe signed the commitment order. Sutton thereupon sued out the writ of habeas corpus to which the respondents made return setting out the commitment of December- 15th and the fact that the fine had not been paid. After hearing the writ was dismissed by Judge Clancy.

What Sutton has attempted to do is to use the writ of habeas corpus to attack collaterally the district court’s decisions that it had jurisdiction to appoint the temporary ancillary receiver, 71 F.Supp. 103, and to make permanent his appointment by the judgment of July 21, 1947. Those orders were appealable. See 28 U.S.C.A. § 227; Pacific Northwest Packing Co. v. Allen, 9 Cir., 109 F. 515; Sutton did not see fit to appeal from them but sought to attack them collaterally. Where the question of jurisdiction has been litigated, that issue is ordinarily immune from collateral attack. United States v. Jaeger, 2 Cir., 117 F.2d 483, 487 and cases there cited. In Sunal v. Large, 332 U.S. 174 at 179, 67 S.Ct. 1588 at 1591, 91 L.Ed. 1982, the court said that “the situations in which habeas corpus has done service for an appeal are the exceptions,” adding “Thus where the jurisdiction of the federal court which tried the case is challenged or where the constitutionality of the federal statute under which conviction was had is attacked habeas corpus is increasingly denied in case an appellate procedure was available for correction of the error.” Although the writ may still be availed of, despite neglect to appeal, in exceptional cases,² we do not think the present is such a case. Accordingly • the judgment is affirmed.

1 Thus there was diversity of citizenship under 28 U.S.C.A. § 41(1), if the 1940 amendment is valid. In two circuits, by a divided court, the amendment has been held unconstitutional. Central States Co-ops. v. Watson Bros. Transp. Co., 7 Cir., 165 F.2d 392; National Mut. Ins. Co. v. Tidewater Transfer Co., 4 Cir., 165 F.2d 531.

2 United States ex rel. Stabler v. Watkins, 168 F.2d 883.

1 -The issue is now before the Supreme Court on grant of certiorari, 68 S.Ct. 746, in the National Mut. Ins. Co. case; it has quite divided the district courts and the law reviews, though it was suggested in 55 Yale L.J. 600, 603, in 1946, that the Court might “well resolve this divergence among the lower judiciary by declaring an act of Congress unconstitutional for the first time since 1936.”

2 The district court’s reliance on a brief quotation from Judge L. Hand’s opinion in Goldman v. Staten Island Nat. Bank & Trust Co., 2 Cir., 98 F.2d 496, 497, seems misplaced, because there appears to have been already in the district a proper ancillary receiver appointed where diversity of citizenship appeared. Cf. Prudential Ins. Co. of America v. Liberdar Holding Corp., D.C.E.D.N.Y., 6 F. Supp. 803, and id., 2 Cir., 85 F.2d 504.