COMMON LAW FORM XXII.-PETITION FOR LEAVE TO REFRAME COMMON LAW PLEADING INTO BILL IN EQUITY. [144 Fed. 679.] [District] Court of the United States for the Southern District of New York. To the Honorable, the Judges of the [District] Court of the United States for the Southern District of New York. The petition of Christian Dancel and Mary Dancel, administrators of the goods, chattels and credits of Christian Dancel, deceased, by J. Philip Berg, their attorney, respectfully shows: I. Heretofore and on or about October 15th, 1900, an action above entitled, was duly commenced by the above named plaintiffs against the above named defendant in the Supreme Court of the County of New York by the issue and service of a summons and notice in pursuance of Section 419 and the other provisions of the New York Code of Civil Procedure in the City and County of New York, upon William D. Van Roden who had been duly designated by said defendant as a person in the State of New York upon whom process addressed to said defendant might be served and who had duly consented to act in that capacity. Said defendant is and then was a foreign corporation organized and existing under the laws of the State of Maine. No appearance was made in said action on behalf of said defendant within twenty days after service of said summons and thereafter on or about November 8th, 1900, a judgment was duly entered against said defendant directing that the plaintiffs above named recover of said defendant the sum of $10,233.80. Thereafter defendant moved to open its said default and to set aside judgment and on or about December 5th, 1900, an order was duly entered by said Court in said action directing that said default be opened and that said judgment be vacated upon condition that defendant make and file with the clerk of said Court its bond with the American Surety Company of New York as surety conditioned for the payment of any judgment the plaintiffs may recover against the defendant in said action not exceeding the sum of $12,000, including interest and costs. The said defendant thereupon appeared in said action by Edwards H. Childs as its attorney who still appears for it herein, and on or about December 5th, 1900, filed in said clerk's office a bond with the said Surety as directed in said order. Thereupon on or about December 10, 1900, said defendant filed its petition and bond for removal and procured a removal of said action into this Court. Thereafter these plaintiffs served an amended complaint upon said defendant which prayed judgment for the amount due under the agree ment for the payment of the sum of $416.66% to plaintiffs' intestate, every month during the life of certain letters patent under a certain agreement made between the plaintiffs' intestate and the Goodyear Shoe Machinery Company of Hartford, Connecticut, which agreement, it was alleged in said complaint, had been assumed by said defendant. Said complaint did not specify whether relief was sought in law or equity. The defendant thereupon served a demurrer to said amended complaint with demurrer was in the form of a common law demurrer and did not comply with the equity rules and practice regulating the demurrers in equity. Said demurrer named but one ground, namely: "That the said amended complaint does not state 'facts sufficient to constitute a cause of action.'"' Said defendant thereupon on or about January 29th, 1901, noticed said demurrer for argument as a common law demurrer upon the common law side of this Court. On or about January 29, 1901, said defendant filed in the Clerk's office of this Court a note of issue describing the issues raised by the demurrer in said suit as "issues at law'' and thereafter on or about April 20, 1901, said demurrer was argued orally before the Hon. Hoyt H. Wheeler, a District Judge of the United States, duly authorized to preside as a Judge of this Court, and printed briefs were then submitted to him. Upon said argument neither orally nor in its printed briefs did the defendant suggest the objection that the plaintiffs could only have relief against the defendant in a Court of Equity; and it was assumed by the plaintiffs and the defendant and by the attorneys and counsel of both of them that if the plaintiffs were entitled to any relief, such relief could only be obtained in an action at law. Thereupon on or about May 13, 1901, an order was duly filed and made herein by Judge Wheeler overruling said demurrer and on or about May 16, 1901, an interlocutory judgment was duly entered herein in accordance with said order overruling said demurrer with leave to defendant to answer. Subsequently on or about June 4, 1901, said defendant duly served and filed herein its answer to said amended complaint. Said answer neither mentioned or suggested that the plaintiffs' remedy was in equity and not at law. The issues raised by said answer were thereafter duly brought on for trial at a jury term of this Court on or about November 19, 1901. Both parties duly waived a jury and the case was tried with the consent of both parties before Judge Wheeler, who directed judgment for the plaintiffs upon the pleadings for the sum of $10,780.33 with costs. Upon said trial the defendant neither claimed nor suggested that the plaintiffs' remedy was in equity and not at law. Thereupon on or about December 2, 1901, a judgment was duly entered herein in favor of said plaintiffs against said defendant for the sum of $10,810.33. The said defendant thereupon sued out a writ of error to procure a review of said judgment by the United States Circuit Court of Appeals for the Second Circuit. At or about the time of its petition for said writ of error, said defendant filed certain assignments of errors in the Clerk's office of this Court. In said assignment of errors said defendant neither claimed nor suggested that the plaintiffs' remedy against the defendant herein was in equity and not at law. Thereafter the said writ of error came on for argument before said Circuit Court of Appeals. In its argument of and in support of said writ of error said defendant, which then was plaintiff in error, for the first time claimed and argued that these plaintiffs could have no remedy in a court of common law. The brief of said defendant then stated on pages 17 and 18: "It is but fair to the learned Judge before whom "the cause came in the Court below to state that this point was not argued "before him." On or about December, 1902, said Circuit Court of Appeals handed down an opinion written by Judge Wallace. In said opinion said Circuit Court of Appeals overruled all the defenses to this action made by the defendant in the Circuit Court, and held that the payments under the contract annexed to the complaint were due and must be paid by the defendant's company after the death of Christian Dancel; but said Court further held that the plaintiffs' remedy upon the facts of this case was in equity and not at law. Thereafter on or about December 30, 1902, an order was entered upon said writ of error by said Circuit Court of Appeals which directed, "That the judgment of said Circuit Court be "and it hereby is reversed with costs, taxed at the sum of $124.07 with"out prejudice to an application by plaintiffs for leave to reframe the "complaint into a bill in equity.'' Subsequently on or about January 26, 1903, said defendant moved to resettle said order by striking out the words: "That the judgment "of said Circuit Court be and it hereby is reversed with costs, taxed "at the sum of $124.07 without prejudice to an application by plain"tiffs for leave to reframe the complaint into a bill in equity." But said motion was denied by said Circuit Court of Appeals. Subsequently a mandate was issued out of said Circuit Court of Appeals which on or about February 6, 1903, was duly filed in the Clerk's office of this Court. Said mandate directed: "That the judgment of said Circuit Court be "and it hereby is reversed with costs, taxed at the sum of $124.07, with"out prejudice to an application by plaintiffs for leave to reframe the "complaint into a bill in equity. You, therefore, are hereby commanded "that further proceedings be had in said cause, in accordance with the "opinion of this Court as according to right and justice, and the laws "of the United States, ought to be had, the said writ notwithstanding.'' II. In all its proceedings herein until said opinion of the Court of Appeals was handed down these plaintiffs were advised by their attorney, J. Philip Berg, that their remedy against the defendant was at common law and not at equity; and they believed that the opinion of the Supreme Court of the United States, speaking through Mr. Justice Gray in the case of the Union Mutual Life Ins. Co. against Hanford, 143 U. S. 187, established that position. That opinion said: "The question whether the "remedy of the mortgagee against the grantee," who has brought the equity of redemption and covenanted with the mortgagor to pay the mortgage, "is at law and in his own right, or in equity and in the right "of the mortgagor, only is (as was adjudged in Willard v. Wood, above "cited, 135 U. S. 309), to be determined by the law of the place where "that suit is brought. By the law of Illinois, where the action was brought "as by the law of New York and of some other States, the mortgagee "may sue at law the grantee, who, by the terms of an absolute conveyance from the mortgagor, assumes the payment of the mortgage debt, "Dean v. Walker, 107 Illinois, 540, 545, 550; Thompson v. Dearborn, 107 "Illinois, 87, 92; Bay v. Williams, 112 Illinois, 91; Burr v. Beers, 24 "N. Y. 178; Thorp v. Keokuk Coal Co., 48 N. Y. 255.'' 66 Your petitioners by the failure of the said defendant and its attorney to make this objection in this Circuit Court were misled into the belief that the defendant herein was willing to have this suit continued, determined and tried as an action at common law and waived all objections to such procedure. Had the defendant made this objection in said Circuit Court, these plaintiffs would have continued this suit after its removal as a suit in equity. III. Since the commencement of this action and on or about November 19, 1900, the defendant filed in the office of the Secretary of the State of New York a paper revoking its designation of the said Van Roden as a person upon whom process addressed to said defendant could be served. Defendant has ceased to transact business in the State of New York and there is no person in the State of New York, service of process upon whom, in a new suit, will bind said defendant. The defendant has transferred all its property in the State of New York; and these plaintiffs have searched diligently but have been unable to find any property of said defendant within the State of New York which it has not transferred. The plaintiffs are residents of the State of New York. If these plaintiffs are not allowed a repleader and permission to continue this suit on the equity side of this Court, they will be unable to begin a new suit at law and equity against said defendant in this State; and they will lose the benefit of the security of the bond for $12,000.00 given by defendant as aforesaid. Wherefore your petitioners pray that an order be entered granting a repleader herein permitting your petitioners to file in the Clerk's office of this Court as continuation of this suit, a bill in equity to enforce said contract and directing that the said defendant file an answer plea or demurrer thereto within twenty days and that in default thereof a decree taking said bill as confessed may be entered against said defendant, and that your petitioners may have such other and further relief as may be just and thus your petitioners will ever pray. CHRISTIAN DANCEL, J. PHILIP BERG, ESQ., Plaintiffs and Petitioners' Attorney. STATE OF NEW YORK, County of New York, ss: Christian Dancel and Mary Dancel, being severally duly sworn, depose and say: The foregoing petition is true to our and each of our own knowledge except as to the matters therein stated to be alleged upon information and belief and as to those matters we and each of us believe it to be true. CHRISTIAN DANCEL, H. D. WILSON, Sworn to before me this 16th day of February, 1903. [SEAL] Notary Public (No. 16), Kings County, N. Y. Certificate filed in New York County. COMMON LAW FORM XXIII.-ORDER GRANTING LEAVE TO REFRAME COMMON LAW PLEADING INTO BILL IN EQUITY. [144 Fed. 679.] At a stated Term of the [District] Court of the United States for the Southern District of New York held at the Post Office Building in the City of New York and County of New York on the 21st day of February, 1903. Present: Hon. E. Henry Lacombe, Circuit Judge. CHRISTIAN DANCEL and MARY DANCEL, as Administrators of the Goods, Chattels and Credits of Christian Dancel, Deceased, against Plaintiffs, GOODYEAR SHOE MACHINERY COMPANY OF PORTLAND, MAINE, Defendant. On reading and filing the petition of Christian Dancel and Mary Dancel, sworn to February 16, 1903, and the notice of motion by said petitioners for the relief prayed in said petition and upon the mandate of the United States Circuit Court of Appeals herein, the order of this Court upon this mandate, and upon all the papers and proceedings herein; and upon the affidavit of Edwards H. Childs, Esq., sworn to February - 1903, in opposition to said motion; and after hearing Roger Foster, Esq., of counsel for the petitioners herein in support of said motion for the relief prayed in said petition, and Edwards H. Childs, Esq., in opposition thereto; on motion of J. Philip Berg, Esq., attorney for said petitioners, it is Ordered that the prayer of said petition and that said motion be and the same hereby is granted; that said petitioners, and the plaintiffs in the above entitled action are hereby granted a repleader herein and that they are permitted to file in the Clerk's office of this Court as a continuation of this suit a bill in equity to enforce the contract described in the original complaint herein and that the defendant herein is directed 7 |