Opinion
No. 193.
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 James Collins, Owen Lawlor, and others for abatement of a nuisance. Decree dismissing the bill of complaint as to all except named defendants, closing the premises for one year, and personally restraining named defendants, who appeal.
Modified, and, as modified, affirmed.
The government brought its bill in equity against several defendants in accordance with the provisions of title 2, §§ 21, 22, and 23, of the National Prohibition Act (27 USCA §§ 33-35), to abate a common nuisance alleged to exist on the premises at 112-118 West Forty-Fourth street, New York City, under the name of Waverly Club. Owen Lawlor, James Collins, and William Dolan, alias John Nolan, were alleged to be the proprietors of the business, the 114 West 44th street Corporation to be the owner of the real estate, and James Collins to be the lessee. Service was had only upon Owen Lawlor, who appeared and answered. Before hearing, James Collins appeared specially by his attorney and gave notice that he would move to dismiss the complaint upon the ground that he was the owner and proprietor of the business, the occupant of the premises, and an indispensable party who had not been served with process. The same attorney who appeared generally for Lawlor appeared specially for Collins. The court suggested to this attorney that, if Collins and not Lawlor was the owner, Collins might appear generally and be heard on the merits, but the attorney never formally entered a general appearance for Collins. There is nothing in the record to show that a motion to dismiss was ever made in behalf of Collins, and at the hearing on the merits this attorney conducted the defense. His special appearance for Collins was never withdrawn.
On sufficient evidence for that purpose, the court found that Lawlor and Collins were the proprietors of the business carried on at the premises named in the bill, and that they permitted the provisions of the act to be violated therein. It was conceded that a common nuisance existed there. It was also found that "the defendant James Collins, who appeared specially by attorney in 1927 and in 1931, thereafter by such attorney appeared generally and participated in the trial of this action and submitted himself to the jurisdiction of this court herein." For the significance of the reference to 1927, see U.S. v. Waverly Club (D.C.) 22 F.2d 422.
At the conclusion of the hearing, the complaint was dismissed as to all defendants but Lawlor and Collins; the premises were closed for one year; and a personal injunction was issued against these two defendants.
M. Michael Edelstein, of New York City, for appellants Owen Lawlor and James Collins, 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.
Since Lawlor was one of the owners of the business which constituted the common nuisance at the premises and was served, the court had jurisdiction to enter the decree of closure to abate the nuisance there, United States v. Gaffney et al. (C.C.A.) 10 F.2d 694, and to issue the personal injunction against him.
The injunction against Collins was granted without service upon him in an action in which he did not appear himself and in which no appearance was ever formally made in his behalf except a special appearance by the same attorney who appeared generally for Lawlor. It is true that this attorney defended on the ground that Lawlor had no interest in the business and in so doing claimed and introduced evidence tending to prove that Collins was the sole owner. Had his defense been successful to the extent of causing the government's proof that Lawlor was one of the proprietors to fail, he would have put Collins in a position to take what benefit, if any, would inure to him. Yet the attorney professed to appear generally only for Lawlor, and expressly stated in response to an inquiry from the court that he did not appear generally for Collins. The action of the court in treating what was done as a general appearance for Collins, which amounted to a submission to the jurisdiction, supplies all there is of importance in this appeal.
Doubtless the position in which Collins was placed by the decree from which this appeal was taken was due to the fact that his attorney had no discernible reason for entering a special appearance for him at all. It was not claimed that any service of any kind had been had upon him. The defense to this action was based on the claim that without it no decree on the merits could be entered because he was the sole owner of the business. If it fairly appeared that the special appearance was a palpable effort to give him the benefit of a hearing on the merits without submitting himself to the jurisdiction of the court, the finding of a general appearance was justified, since when an appearance is made in behalf of a party what it is called will not change its real character. Mahr v. Union Pacific R.R. Co. (C.C.) 140 F. 921, affirmed (C.C.A.) 170 F. 699. The true test is found in what is done by way of participation in the action. Merchants H. L. Co. v. Clow Sons, 204 U.S. 286, 27 S. Ct. 285, 51 L. Ed. 488.
But the appearance of this attorney for Collins specially was not, when made, a submission to the jurisdiction in behalf of his client. Following that, no pleadings were filed and nothing was done which was not within the scope of his appearance for Lawlor. Indeed, after the hearing on the merits began, the special appearance for Collins was apparently barren of legitimate purpose, certainly of any action, and so of no effect. It should have been treated as a nullity. While we agree with the trial judge that a special appearance does not prevent submission to the jurisdiction where there is conduct which amounts to that; where such conduct is absent, the mere, though unwarranted, insistence by an attorney upon a special appearance, is not enough to affect the rights of a party. Any attempted abuse of special appearances is to be condemned and should be dealt with, when necessary, by disciplinary action against the offending attorney.
Decree modified to vacate the personal injunction against Collins, and in all other respects affirmed.