« ПретходнаНастави »
therein set forth as an answer to the writ: (1) That the information upon which the said order to show cause was granted, as also the affidavits filed in support thereof, failed to show that the said Aaron had been guilty of any violation of the order of injunction theretofore entered in said cause; (2) that said order of injunction was not served upon him, and he had no knowledge of the same or any of the proceedings in the cause theretofore.
The answer further stated and admitted that, as an employé of Wasserman & Co., he, the said Aaron, did undertake to sell the ticket which had been issued to said Goldman, and that being informed that said ticket had not been honored, but had been taken up at the Union Station in the city of St. Louis, subsequently refunded the amount of money, to wit, $14, which he had previously received from said person, but denied generally the other averments in said information.
The assignments of error are that the information for the attachment is insufficient, for the reason that it does not show service of the order of injunction upon the defendant and knowledge on his part thereof, and because the record fails to show such service; and (2) that there was no competent evidence that the sale of the ticket in question was in violation of the injunction, and that the offer of the ticket in evidence should have been rejected; (3) that the court erred in admitting in evidence the letter written by Mr. Judson.
While the defendant was impleaded by the name of "A. Aaron," the trial court found that there was sufficient evidence to show that sometimes he was known, especially to some of the police force of the city of St. Louis stationed in the vicinity of the office where he conducted his business, by the name of A. Aaron; and there is no ground for permissible contention but that he was the identical Aaron proceeded against in the original bill of complaint, and the person had in view in the contempt proceedings. The evidence shows that he was the only Aaron connected with the business of Wasserman & Co. in the sale of such tickets at St. Louis; that he was the vice president of the company, and the active agent therefor, and the identical Mr. Aaron who obtained from Goldman the ticket in question and sold it to one Ernst F. Barthel. It could not therefore be held that he was misled, or that he was not a party in fact to the proceeding.
The second objection goes to the sufficiency of the petition or motion for attachment. It is urged that the petition is defective in not sufficiently referring to the original bill of complaint and reciting the terms of the injunction order alleged to have been disobeyed. The petition is entitled as in the original bill of complaint. It charges that the defendant violated and disobeyed the temporary injunction heretofore granted by the court against the defendants in the suit, including Wasserman & Co., Bennett Wasserman, and said Aaron, granted on the 29th day of April, 1904, in pursuance of the stipulation entered into by all the parties to the cause. It then sets out with particularity the issuing to, and the purchase of the ticket in question by, said L. Goldman, who traveled thereon from the city of New York to St. Louis, and the purchase thereof by said Wasserman & Co., Bennett. Wasserman, and said Aaron, and the sale by them of the return portion of said signed contract of the nontransferable reduced rate rail
road ticket on the 25th day of July, 1904, at the city of St. Louis, Mo., for the price of $14, to one Ernst F. Barthel. It then sets out the provisions of the contract on said ticket. The petition was sworn to by one Deppe, alleging that the matters and facts set forth therein are true as he verily believes. It was also accompanied by the affidavits of witnesses, specifically charging the facts upon their own knowledge.
It is now the recognized rule that the information in a contempt proceeding is sufficient if it clearly apprises the defendant of the nature of the charge against him, and no particular form is necessary. Spelling on Injunctions, § 1121. As the defendant is alleged to have been a party to the suit and the injunction order, and appeared thereto, he was sufficiently advised of the provisions thereof, and the precise order he was charged to have violated; and the affidavits filed therewith, in support of the writ, fully described the offense. If the information for the writ was defective in matter of form, it should have been taken advantage of by the defendant in proper manner by motion before going to trial. Where the party charged with the contempt appears without objection to the sufficiency of the information and affidavits by appropriate motion, but answers and goes to trial, the objection is deemed as waived. Davis v. State, 31 Neb. 252, 47 N. W. 854; Zimmerman v. State, 46 Neb. 14, 64 N. W. 375; People ex rel. Barnes v. Court of Sessions, 147 N. Y. 295, 296, 41 N. E. 700; Enc. of Pl. & Prac. vol. 4, p. 786.
It is further contended that the injunction order was not served on the defendant, and that he had no knowledge thereof. It is conceded that, if the defendant was in court when the temporary injunction was granted, this objection is not good. His contention, however, is that he never authorized Judson and Green, and others, to appear and represent him in the original suit in which the temporary injunction was granted. The authority of an attorney or counsellor to appear in court as the representative of a litigant is no longer required to be expressed by the filing of his warrant of attorney. In the early case of Osborn v. United States Bank, 9 Wheat. 738, 830, 6 L. Ed. 204, Chief Justice Marshall expressed the rule, now universally recognized, as follows:
"Certain gentlemen, first licensed by government, are admitted, by order of court, to stand at the bar, with a general capacity to represent all suitors in the court. The appearance of any one of these gentlemen in a cause has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state, or of the Union."
Presumptively, therefore, the counsel who appeared for the defendant were authorized to do so, and the burden rested upon him to show to the satisfaction of the court the nonexistence of this authority. Enc. of Plead. & Prac. vol. 2, p. 682. Mr. Judson, the leading and active counsel for the defendants in the original suit, testified that he certainly would not have appeared for any defendant without feeling well assured that he was authorized thereto; that there were a large number of like suits instituted by various railroads concerned against the socalled dealers in such alleged transactions; that his law firm was em
ployed by a committee representing such parties to appear and defend for them; that Bennett Wasserman, the then president of the corporation, of which the defendant, Aaron, was vice president, visited and talked with him about the case. As the defendant was vice president of the company, and its active agent in the purchase and sale of such tickets, it is incredible, in view of the evidence that the public press the city of St. Louis was publishing and discussing the injunctive proceedings against the "scalpers," that this defendant was not advised by Wasserman of these proceedings. No impartial mind can read the cross-examination of this defendant, with its studied lack-candor, evasive answers, without the conviction that he was rather concealing than telling the whole truth. His conduct connected with the transaction of the sale of the Goldman ticket shows that he was conscious of violating the law and cunningly contriving to evade detection. At the time he sold the ticket to Barthel he directed him to practice a deception on the agents of the railroad company by being cautioned, if questioned by them, to answer that his name was L. Goldman, and that when he left the "scalper's" office not to go direct to the railroad station, but to pass around the corner, so that if any watcher should be standing on the outside of the office he might avoid detection. It is quite evident from the opinion of the learned trial judge who sat in the hearing of this case that he discredited the testimony of the defendant touching this issue of fact, and we are of opinion that he was justified therein.
Moreover, immediately after the granting of the injunctive order, Mr. Judson, as counsel for the defendants, addressed and mailed a letter to said Wasserman & Co., advising it of the granting of the injunction against it, and said Lewis Aaron and others, stating, among other things:
"That the injunctions are against your successors and assigns as well as against your servants and agents. * * We can only add that while we regret that situation, and have spared no efforts to prevent it, we now feel it our duty to call your attention to the injunction, and to warn you of the very serious consequences of their violation. There is only one course to pursue in the case of an injunction, however erroneous or oppressive it may be; and that is, to obey it until it is set aside."
As the defendant, Aaron, was the active manager in charge of the office of Wasserman & Co., it is asking too much of credulity to believe that such advice coming to that office could have escaped the keen eyes of this wide-awake, active agent. He never complained to Mr. Judson that he was not his counsel.
The admission of this letter in evidence is assigned for error, on the ground that it was a privileged communication. This contention is remarkable for this party to make in view of his denial that the relation of attorney and client existed between him and Judson. He protests too much. Had he conceded that Judson was his counsel, there would have been no occasion for the introduction in evidence of this letter, as Judson's appearance to the suit and consent to the order of injunction would have concluded him as to notice thereof. Having denied such notice, the letter addressed to the company, of which he was vice president and active agent, was competent on the ground that it was a circumstantial fact contributing to the proof of his knowl
edge that Judson was acting as counsel for him. On the other hand, if he had conceded that Judson was his counsel, the letter was harmless. The letter contained nothing more than information imparted to him. by counsel of what the court record itself showed. Such a communication is not within the spirit of the statutory exemption as being privileged. It was not a fact which was communicated by counsel which came to the possession of counsel alone by reason of the relation of attorney and client. The rule of the statute "does not extend to the protection of matter communicated not in its nature private or which cannot properly be termed the subject of a confidential disclosure." Beeson v. Beeson, 9 Pa. 301, approved in Schaaf v. Fries, 77 Mo. App. 359; Greenleaf, Ev. (16th Ed.) § 244.
Other questions are suggested by counsel for plaintiff in error, some of which are not specified in the assignment of errors; and, as they in no degree affect the conclusion reached on the law of the case, no practical end can be subserved by further discussion. It may be properly added, however, that the contention of the defendants in error that the right to have the sentence of the Circuit Court reviewed by this court should be conditioned upon a motion for new trial in the court below and the overruling of the same (citing Zimmerman v. State, 46 Neb. 15, 64 N. W. 375), is not tenable. A motion for new trial is not essential in this jurisdiction to entitle a party to a review by the Court of Appeals. This has been so repeatedly decided as not to require the citation of authorities. The writ of error in this case was the proper remedy. Bessette v. W. B. Conkey Company, 194 U. S. 324, 24 Sup. Ct. 665, 48 L. Ed. 997.
It results that the judgment of the Circuit Court must be affirmed.
(155 Fed. 838.)
In re LOVELAND. In re LITTLEFIELD.
PUTNAM v. LOVELAND.
(Circuit Court of Appeals, First Circuit. February 13, 1907.)
1. BANKRUPTCY-JURISDICTION OF COURT-SALE OF PROPERTY.
A court of bankruptcy has jurisdiction to order a sale of property of a bankrupt upon which a lien is asserted free from such lien, and without first determining either its validity or amount.
2. SAME-VALIDITY OF TRANSFER-EFFECT OF STATE STATUTE.
Although the rights of a trustee in bankruptcy and those of an assignee in insolvency under a state statute are defined in similar language, yet a state statute making a certain transfer void as against an assignee eo nomine does not make it void as against a trustee in bankruptcy.
3. SAME-VALIDITY OF MORTGAGE-INCREASE OF DEBT BY AGREEMENT.
A mortgagor, after having paid a part of a mortgage debt, borrowed further sums from the mortgagee, and indorsements were made upon the mortgage note, to the effect that such sums should be added to the amount previously remaining due thereon. Held, that the mortgage was a valid lien in equity for the full amount of the debt as so increased as against the mortgagor's trustee in bankruptcy, whether tested by the statutes of Massachusetts as construed by its Supreme Judicial Court or by the provisions of the bankruptcy act.
Appeal from the District Court of the United States for the District of Massachusetts.
Charles F. Hall and Arthur W. Blakemore, for petitioner.
Before COLT, PUTNAM, and LOWELL, Circuit Judges.
LOWELL, Circuit Judge. On July 14th Littlefield, the bankrupt, mortgaged real estate to Hall for $6,000, payable in five years. Note and mortgage were in the usual form. Payment of interest to July 14, 1905, was duly made and indorsed on the note, as were sundry payments of principal, the last in 1899 amounting in all to $4,800. Hall died before October 1, 1901, and on that day Littlefield borrowed from Hall's estate $3,500. The following indorsement was then made on the note:
"Boston, October 1, 1901.
"I have this day borrowed of the estate of Joseph E. Hall the sum of $3500, making the amount of the principal of this note the sum of $4700.
"Warren H. Littlefield."
On July 26, 1902, Littlefield borrowed $1,300 more, and a corresponding indorsement was made. Littlefield was adjudged bankrupt October 16, 1905, on a creditor's petition filed September 27th.
Thereafter the trustee in bankruptcy filed a petition with the referee, praying for leave to sell the real estate free from the incumbrance of the mortgage. The referee ordered a sale for not less than $7,500, which sum was to be deposited in a separate account to meet the claims of the mortgagee, Hall's administratrix. This order was affirmed by the district judge and the mortgagee has filed in this court an original petition to revise the order of the District Court in matter of law. This is the question presented in No. 675.
Beside these proceedings, and without prejudice thereto, the mortgagee filed a petition with the referee, asking that her lien be satisfied from the proceeds of the sale. The referee ruled that the lien of the mortgage was valid only to the extent of $1,200 and interest, but the learned district judge held it valid for $6,000 and interest, and from his decree the trustee took an appeal to this court. This is the question presented in No. 676.
The petition for revision is easily disposed of. The court of bankruptcy has jurisdiction to order a sale of the estate of the bankrupt upon which a lien is asserted, without first determining either the validity or amount of the lien. In re Union Trust Co., 122 Fed. 937, 59 C. C. A. 461; Mason v. Wolkowich (decided by this court October 9. 1906) 150 Fed. 699, 80 C. C. A. 435, 10 L. R. A. (N. S.) 765; Marion E. Tucker, Petitioner (decided October 31, 1906) 153 Fed. 91, 82 C. C. A. 225. The petition for revision, therefore, must be dismissed with costs for the respondent.
We pass to the question presented by the appeal. It will be convenient to set out certain statutes of Massachusetts and certain sections of the bankrupt act which have been supposed to be material.
Rev. Laws, Mass. c. 127, § 4:
"A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than seven years from the making thereof, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section