Summary
In United States v. Brown, 2 Cir., 55 F.2d 72, 73, the defendant, who had entered a special appearance, took the witness stand at the request of the court during the defense of his case, although his attorney at all times made it clear that defendant's appearance was special.
Summary of this case from Nolan v. JensenOpinion
No. 216.
January 18, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by the United States against David Brown and others, in which Abe Lieberman entered a special appearance. Decree was entered granting an injunction, and defendants Brown and Lieberman appeal.
Modified and affirmed.
This suit was brought to abate a nuisance claimed to exist on account of violation of the National Prohibition Act. Abe Lieberman, who was neither named in the bill nor served with process, interposed a notice of special appearance setting forth that he was in possession of the premises and the owner and proprietor of the business, and, as such, was an indispensable party to suit, and had not been served with process, and that the court therefore had no jurisdiction, and that he would move to dismiss bill of complaint upon the trial. Following notice of special appearance, Lieberman participated in the defense and testified as to his interest in the premises, and his counsel several times during the course of the trial made clear the fact that Lieberman was appearing specially, and pointed out that Lieberman had testified in accordance with a prior suggestion of the court. The court found, however, that Lieberman by his appearance and testimony had submitted himself to the jurisdiction of the court, and entered a personal injunction against him.
M. Michael Edelstein, of New York City, for appellants David Brown and Abe Lieberman, appearing specially.
George Z. Medalie, U.S. Atty., of New York City (Earle N. Bishopp, Asst. U.S. Atty., of Brooklyn, N.Y., and Leonard J. Obermeier, Jr., Asst. U.S. Atty., of New York City, of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
There was sufficient evidence to support the finding that Brown and Lieberman were the owners of the business; that a common nuisance was permitted by the owners to exist at the premises in violation of the Prohibition Act (27 USCA); but not enough was done under the special appearance for Lieberman to amount to submission to the jurisdiction. United States v. Collins and Lawlor (C.C.A.) 55 F.2d 70.
Decree modified to vacate the personal injunction against Lieberman and in all other respects affirmed.