Respondents Brief — Oils, Inc. v. Blankenship

are SP SON

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até 2.

JAN 15 1945

| UCHANLES ELetne COPLEY

In the Ln sanchisnaiinlennccnecesaresil

Supreme Court of the United States

No. 773

Ouzs, Ixc., an Oklahoma Corporation,

Petitioner,

VERSUS

G. T. BLankensuip; Daisy D. BLankensurp, wife of G. T.

Blankenship; E. S. Hanssercer; M. E. Trappe; Dean M.

Sracy; Harotp F. Younc; Lov SHEPHERD; Trappe &

BLANKENSHIP, a co-partnership composed of M. E. Trapp

and G. T. Blankenship; Nationa Bonp & MorteacE Co.,

an Oklahoma corperation; Royatry Houpine Co., a Dela-

ware corporation; Royatry Service Corp., Lrp., a Dela-

ware corporation; and Eqvat Royatty Co., a Delaware

corporation,

Respondents.

ANSWER BRIEF OF RESPONDENT, M. E. TRAPP

Ram Morrison,

1816 Petroleum Building,

Oklahoma City, Oklahoma,

Attorney for Respondent,

M. E. Trapp.

January, 1945.

- = Brat =e~eee: secre Iie in tits sts

KING “LAW .W BRIEF 1EF CO., “418 NW Third, Oklahoma City—Phone 3-296S

TABLE OF CASES

PAGE

Barnett v. Mayes, 48 F. (2d) 521 oe 3

Cabaniss v. Reco Min. Co., 116 F. 318 5)

Cincinnati, ete. R. Co. v. Indianapolis, ete. R. Co., 270 U. S,

106, 70 L. ed. 490 3

Comer v. Felton, 22 U.S. App. 313, 61 F, +

Converse-Hough & Co., Ine., In re., 27 * a 368 5

Fulton National Bank of Atlanta v. Hozier et al. Re-

ceivers, 267 U. S. 276, 54S. Ct. 261, 69 L. ed. 609 ____ 2

Green-Boots Cons. Co. v. Hays, 56 F. (2d) 829 ~ 4

Hoffman v. MeClelland, 264 U. S. 552, 62 L. ed. 845, 44

S. Ct. Rep. 407 3

Hook v. Bosworth, 24 U. S. App. 341, 64 F. 448 4

Johnson v. Thomas, 16 F. Supp. vse 5

Julian v. Central Trust Co., 193 U.S. 93, 48 L. ed. 629, 24

S. Ct. Rep. 399 3

Milwaukee ete. Co. v. Milwaukee St. P. R. Co., 2 Wall. 609,

17 L. ed. 886 : 3

Morgan’s ete. R. Co. v. Texas Cent. Ry. Co., 187 U. S.171 3

Murphy v. Hoffman Co., 211 U.S. 562 3

Rockwood v. Foshay, 6 i. (2d) 625 4

Sullivan v. Colby, 34 U. Matas 432, 71 F. 460 4

Union Guardian Trust Co. vy. Detroit Trust Co., 72 F.

(2d) 120

Volland, In re., 88 F. (2d) 680 en 5

Wabash iy Co. v. Adelbert College, 208 U.S. 38, 52 L. ed.

379, 28 S. Ct. Rep. 182 3

White v. Ewing, 159 U.S. 36 4

Black’s Law Dictionary em 2

Clark on Reeeivers (2nd. Ed) p. 797, par. 084 4

84 Cye. p. 218 q

Smith on Receivers (2nd. Ed.) See. 54, p. 227 4

a a 7 — = - Ee

x

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In the

Supreme Court of the United States

No. 773

Ouxs, Inc., an Oklahoma Corporation,

Petitioner,

VERSUS

(i, T. Buankensui; Daisy D. BLankensurp, wife of G. T.

Blankenship; KE. S. Hanspercer; M. E. Trapp; Dean M.

Stacy; Harotp F. Younea; Lou SwHepuerp; Trare &

BLANKENSHIP, a co-partnership composed of M. E. Trapp

and G, T. Blankenship; Natrona Bonn & Morteace Co.,

an Oklahoma corporation; Royaury Hotprye Co., a Dela-

ware corporation; Royaury Service Corp., Lrp., a Dela-

ware corporation; and Mguat Royaury Co., a Delaware

corporation,

Respondents.

ANSWER BRIEF OF RESPONDENT, M. E. TRAPP

The Cireuit Court in its opinion has stated the facts and

the issues clearly and succinctly. There is little that can be

added to clarify the issue before the Court.

The petitioner, in his statement of the case and his

Specification of Error, also in his argument, continues to use

2 Os, Inc. vy. BLANKENSHIP ET AL.

Saget ~ EAE e

legal terms that have both a general and a specific meaning,

thereby adding to his own confusion in discussing the issues

so ably covered in the opinion of the Circuit Court.

The term ‘‘subject matter’? may mean the “right of

action,’’ or it may mean the object or property involved in the

action. The term ‘‘res’’ has a general and a limited meaning,

‘The ‘right of action’’ often is called the res, which is a gen-

eral use, but in a limited sense, the res is ‘fany object of

right other than the right of action.’’ (1).

, A proceeding is not ancillary to the power or jurisdiction

‘ of the court over ‘‘a right of action.’? The proceeding is an-

4 cillary only to the power or jurisdiction of the Court, exer-

cised in direct relation to property, or assets actually or con-

structively drawn into the Court’s possession or control by

the principal suit. No proceeding is ancillary, except where

it has a direct relation to ‘‘an object of right other than the

right of action’? actually or constructively drawn into the

Court’s possession or control by the principal suit. (2).

The Circuit Court in its opinion clearly recited the rule

the ts

Pete

‘The test of whether a suit is ancillary is whether it

has direct relation to property or assets actually or con-

é structiveiy drawn into the court’s possession or contro)

by the principal suit.’’

a

There are three categories of recognized ancillary juris-

diction:

(1) Blacks Law Dictionary.

(2) Fulton National Bank of Atlanta v. Hozier, et al., Receivers, 267 U. S.

276, 54 Supreme Court 261; 69 Law Edition 609, and other cases cited by

the Circuit Court in its opinion.

Brier or Responpent, M. E. Trapp 3

(1) When a ‘fright of action’’ is reduced to a judg-

ment the judgment is ‘‘an object of right other than the

right of action,’’ or a res, m a restricted sense, and the

court, having jurisdiction of its judgment, can by ancil-

lary proceedings enforce the same or protect the same

by anci!lary proceedings. (3).

This is not an action to enforce the judgment or decree

in the principal action, Number 461. Petitioner refers to or-

ders of the Court in the principal action and attempts to

class said orders, or the directions to the Court’s receiver, as

judgments and decrees of the Court, in which the petitioner is

in error.

(2) A Federal Court, which has taken custody or

control of property in a proceedings, of which it has jur-

isdiction has ancillary jurisdiction of a subordinate

suit or proceeding affecting such property. (4).

This is an action ea delicto and does not involve any

property actually or constructively drawn into the Court’s

possession or control by the principal suit.

(3) A Federal Court, which has appointed a_re-

ceiver in a proceeding of which it has jurisdiction, has

(3) Julian v. Central Trust Company, 193 U. S. 93, 48 Law Edition 629, 24

Supreme Court Report 399;

Milwaukee cnd M. E. Co. v. Milwaukee St. P. R. Co., 2 Wall 609-613, 17 Law

Edition 886-895;

Wabash R. Co. v. Adelbert College, 208 U. S. 38, 52 Law Edition 379, 28

Supreme Court Report 182;

Hoffman v. McClelland, 264 U. S. 552, 62 Law Edition 845, 44 Supreme Court

Report 407;

Cincinnati, Indianapolis and Western R. R. Co. v. Indianapolis Union R. R. Co.,

270 U. S. 106, 70 Law Edition 490.

(4) Wabash R. R. Co. v. Adelbert College, 208 U. S. 38, 54;

Morgan‘s La. and Texas R. R. and S. S. Co. v. Texas Central Ry. Co., 137 U. S.

] °

‘ ‘

Murphy v. John Hoffman Co., 211 U. S. 562, 553;

Barnett v. Mayes, 10 Cir., 43 F. (2d) 521, 526-528;

Cited by the Circuit Court.

__ RENAL Decie eae:

a

+ Oius, Inc. v. BLANKENSIIP ET AL.

jurisdiction to entertain a suit or proceeding to collect

or recover assets. (5),

But an action against third persons, persons not parties

to the receivership action, and not officers of the court, over

property or funds not in the actual or constructive posses.

sion of the court, but held adversely by said third persons,

must be a plenary action, An action involving the adminis.

tration of funds or property in the actual or constructive

possession of the reeciver, or the court, is a summary or ancil-

lary proceedings. In determining whether the court has ae-

tual or constructive possession of the property or assets

the distinction is made, upon the fact as to whether the

possession or claim of third persons arose prior to or subse-

quent to the appointment of the receiver. If the claim and

possession of said funds or property oceurred prior to the

ippolutment of the receiver, it will necessarily be a plenary

action. While if said possession and ownership or elaim oe.

curred after the appointment of the receiver, it may pro-

ceed summarily by a petition for a rule to show cause in the

receivership proceedings (6).

(5) White v. Ewing 159 U. S. 36, 38, 39;

Green-Boots Constr. Co. v. Hays, 10 Cir, 56 F. (2d) 829, 830:

Goldman v. Stoten Island Nat. Bonk G Trust Co., 2 Cir., 98 F. (2d) 496. 497;

Union Guardian Trust Co. v. Detroit Trust Co., 6 Cir., 72 F. (2d) 120, 121;

Rockwood v. Foshay, & Cir... 6 F. (2d) 625. 627

Cited by the Circuit Court

(6) Smith on Receivers, Second Edition, Section 54, poge 227;

Clark on Receivers, Second Edition, pege 797, por. 584;

Cyc. 84, page 213;

Comer v. Felton, 10 C. C. A. 28, 22 U. S. Apo. 313, 61 F. 731;

Hook v, Bosworth, 12 CC. A. 208, 24 U. S. App. 341, 64 F. 443;

Sullivan v. Colby 18 C. C. A. 193, 34 U. S. App. 432, 71 F 460.

Beter or Responpent, M. FE. Trapp 5

This action is to recover against the respondent, M. E.

Trapp, a money judgment and no wise could it be said that it

is in direct relation to any funds or property drawn in actual

or constructive possession or control of the court in the

principal suit.

Further, if said aetion were ancillary, under this eate-

yory, as soon as the original action was terminated and the

receiver discharged, the ancillary proceedings would neces-

sarily fall (7).

The rule, stated by the Cireuit Court, covers all three

categories since a judgment is ‘tan object of right other than

u right of action,’’ the res ina restricted sense, a thing, prop-

erty or asset. The petitioner, in his statement of the case or

lis argument, does not attempt to show that there is prop-

erty or assets involved in this proceedings, over which the

court in the principal action had actual or constructive

possession or control. The petitioner in this cause does not

allege or state facts which show that there is property or

assets over which the court, in the principal suit, Number

401 Civil, had actual or constructive possession, or that this

is an action to entorce, interpret or protect a judgment or de-

cree of the court in the principal action. Therefore, the peti-

tion shows upon its face that the Court does not have juris-

Johnson v. Thomas, 0. C. Tex., 16 F. Supp. 1019;

In re Voiland, 7 Cir., 83 F. (2d) 630, 681

In re Converse-Hough G Co., Inc., D. C. N. Y., 27 F. (2d) 368

Caboniss v. Reco Min. Co.. 5 Cir., 116 F. 318, 323;

Cit Circuit Court under point number (9

ee a

6 Os, Inc. v. BLANKENSHIP ET AL.

diction, and the judgment of the Cireuit Court should be af.

firmed and the writ of certiorari denied.

Respectfully submitted,

Ram Morrison,

1816 Petroleum Building,

Oklahoma City, Oklahoma,

Attorney for Re sponds nt,

M. Ek. Trapp.

January, 1945.

JAN 17 3985

CHARLES ELMORE OROPLEY

ULEPK

No. 773

Supreme Court of the United States

(Octoser, 1944, Term)

Oris, Inc., an Oklahoma Corporation,

Petitioner,

VERSUS

G. T. BLANKENSHIP, ET AL.,

Respondents.

BRIEF OF RESPONDENTS G. T. BLANKENSHIP,

DAISY 0. BLANKENSHIP, LOU SHEPHERD, NA-

TIONAL BOND AND MORTGAGE CO., ROYALTY

HOLDING CO., OIL ROYALTIES, INC., AND EQUAL

ROYALTY CO. IN OPPOSITION TO PETITION.

J. B. Dupiey,

1501 Apco Tower,

Oklahoma City, Oklahoma,

Attorney for Respondents, G. T.

Blankenship, Daisy O. Blanken-

ship, Lou Shepherd, National Bond

and Mortgage Co., Royalty Holding

Co., Oil Royalties, Inc., and Equal

Royalty Co.

Duptey, DuvaL. & DupLey,

Of Counsel.

January, 1945.

UTTERBACK TYPESETTING CO., 13 S. Walker, Oklahoma City 4, Okla.

INDEN

Page

IE SOON ie vee s cdr nds cvcvvaceves® siuccyseo eae 1

re SE vi ca en ise nee an0 4 sRAe he eee Kcamenee 2

Hopler Action, No. 461 Civil ................e.0ee- 2

SO AUME Lc dexhecdecidedei cvs cash eidawantede 3

RE. 5K cexsovervees(sbencesetnsr anders 5

Point I. Jurisdiction, dependent of independent,

must aflirmatively appear from the allegations of

SPU ING 6 55+ 95048 096 s¥pea dd haedaben sews 5

Point Il. The instant action when brought was a

new, independent one, and the district court was

without jurisdiction over the subject-matter there-

of. The Order of dismissal without prejudice was

OE ie snnoinee oubintanesbacunemecibeessawene H)

Point III. If the instant case was dependent when

brought, the termination of the receivership, the

discharge of the receiver, the return of the prop-

erties of the corporations to their respective boards

of directors, their substitution and the elimination

of the receiver from the action terminated the de-

pendent jurisdiction, and the action became an in-

NEE DUD ho vccd ov ive cdehecnvebexweteeeun ts 8

NE Sa 4 ok ed earn tae aol cae cube acd wn tots cod gy

AUTHORITIES

Barker v. Eastman (lst Cir.), 206 Fed. 865 ........... 8

Boston & Montana Consolidated Copper & Silver Min.

Co. v. Montana Ore Purchasing Co., 186 U. S. 631, 47

sr

Page

Campbell v. Golden Cycle Min. Co. (8th Cir.), 141 Fed.

serine EP EE OGIO EAS:

Dugas v. American Surety Co., 300 U. S. 414, 81 L. Ed. 720

Fulton National Bank v. Hosier, 267 U. S. 276, 69 L. Ed.

DEP) thus nee rensy ebed¥4a kakcumar nian eee

Hamer v. New York Railways Co., 244 U. S. 206, 61 L.

PE NONE Kent dasa c Suk eth en epaeck ect ie rk es

Indianapolis v. Chase National Bank, 314 U. S. 63, 86 L.

DME Sein ahi vesvai ess eum iere tail, eae

John Martin Riehle, Receiver v. Edward Margolies, 270

ee, ee ea ee a

Local Loan Co. v. Hunt, 292 U. S. 234, 78 L. Ed. 1230...

McNutt v. General Motors Accept. Corp., 298 U. S. 178,

We Mi MME vecnsessedceis eas.

New Orleans Land Co. v. Leader Realty Company, 255

py SOO ied ce oa

6

—iii—

Page

Oklahoma v. Texas, 258 U. S. 574, 66 L. Ed. 771...... 6

Raphael v. Trask, 194 U. S. 272, 48 L. Ed. 973.......... 5

Riverdale Cotton Mills v. Alabama & G. Mfg. Co., 198

oe er a ie, Os. De vo korn 2 Aw ca eo a cio 5

Smith v. Chase National Bank (8th Cir.), 141 Fed. (2d)

Ec <a ouicin ws adia ie Wh wib oo oe bas oO ae a eek Pie

Smith v. McCullough, 270 U. S. 456, 70 L. Ed. 682...... 5

Volland, In re (7th Cir.), 83 Fed. (2d) 680............ 8

- Warren v. Palmer, 310 U. S. 132, 84 L. Ed. 1118........ 6

| White v. Ewing, 150 U. et Fe See eer 6

28 U. S. C. A., Sec. 80 (Judicial Code, Sec. 37)........ 8

In the Supreme Court of the United States

(OcToperR, 1944, Term)

No. 773

O1ts, INc., an Oklahoma Corporation,

Petitioner,

VERSUS

G. T. BLANKENSHIP, ET AL.,

Respondents.

BRIEF OF RESPONDENTS G. T. BLANKENSHIP,

DAISY 0. BLANKENSHIP, LOU SHEPHERD, NA-

TIONAL BOND AND MORTGAGE CO., ROYALTY

HOLDING CO., OIL ROYALTIES, INC., AND EQUAL

ROYALTY CO. IN OPPOSITION TO PETITION.

OPINIONS BELOW

The judgment of the District Court dismissing the

action without prejudice for want of jurisdiction is dated

November 26, 1943 (R. 45). The opinion of the Circuit

Court affirming is dated October 25, 1944 (R. 49-54), and

is officially reported in 145 Fed. (2d), Advance Sheet No.

5, 354.

ast

GENERAL STATEMENT

Hopler Action, No. 461 Civil

On May 23, 1940, A. P. Hopler, et al, as minority stock-

holders of the Farmers Mutual Royalty Syndicate, Inc,

hereinafter referred to as “Farmers Mutual,” commenced

an action in the District Court of the United States for the

Western District of Oklahoma, against said Farmers Mu-

tual, Oils, Inc., a corporation the petitioner here, Farmers

Royalty Holding Company, a corporation, National Bond

and Mortgage Co,. a corporation, Harry Culver, Victor M.

Locke, Jr., Maynard L., McLain, Bert Shepherd, Gerald

Shepherd, Roy Reynolds, Nina O. Thomas, and Culver &

Shepherd, a co- -partnership composed of Harry Culver and

Bert Shepherd, being Cause No. 461 Civil, and hereinafter

referred to as the “Hopler Case.” The bill of complaint

appears in the record at pages 20 to 29.

On September 29, 1941, findings of fact and conclu-

sions of law were filed. The case was re-opened, additional

evidence introduced, and on January 29, 1942, amended

and additional findings of fact and conclusions of law were

filed. The original, amended, and additional findings of fact

and conclusions of law are not a part of this record.

On January 24, 1942, F. M. Petree was appointed re-

ceiver of the Farmers Mutual and the petitioner. This

order is not a part of the record. On February 18, 1942, a

decree was made and entered in said cause, copy of which

appears in the record at pages 30 to 40. Said decree, as to

the order appointing a receiver, contains this language:

aoe a

witli

“The order of the Court appointing F. M. Petree as

Receiver of the Farmers Mutual Royalty Syndicate,

Inc., and the Oils Incorporated is based upon the

findings and conclusions and this Decree. And the

order is hereby approved and re-entered as of this

date” (R. 30).

In said decree money judgments were awarded in

favor of the petitioner against four individual defendants

(R. 31-33), and in favor of the Farmers Mutual against

eight individual defendants (R. 30-33).

Instant Action

On January 14, 1943, the instant action was brought

by the Farmers Mutual Royalty Syndicate, Inc., an Ari-

zona corporation; and Oils, Inc., an Oklahoma corporation;

both by their Receiver F. M. Petree, Plaintiffs, against

the respondents here. A copy of the petition appears in

the record at pages 1 to 14.

The respondent, National Bond and Mortgage Com-

pany, was a party defendant in the Hopler Case. With the

exception of this concern none of the parties defendant

in the Hopler case is a party defendant in the instant case.

The Farmers Mutual and the petitioner were defendants

in the Hopler case.

On January 18, 1943, an application was filed in the

Hopler case to terminate the receivership. (R. 42-43). On

March 15, 1943, an order was made terminating the re-

“=

intillieals

ceivership, discharging him, and returning the properties

and assets of the Farmers Mutual and the petitioner to

their respective Boards of Directors, (R. 44-45).

On July 23, 1943, an application was filed in the in-

stant case to substitute parties (R. 15-16), and on July 26,

1943, a substitution order was made and entered (R. 17).

This order, in part, provides:

“Now, Therefore, It Is Hereby Ordered, Adjudged

and Decreed that the petitioners be and are hereby

premitted to designate as parties plaintiff-Farmers

Mutual Royalty Syndicate, Inc., an Arizona corpora-

tion, and Oils, Inc., an Oklahoma corporation; that

the words ‘both by the receiver, F. M. Petree’ be

stricken from the designation of the petitioners, and

that said cause proceed with the substituted parties

plaintiff” (R. 17).

Prior to the date of the above order the plaintiffs in

the instant action were Farmers Mutual Royalty Syndicate,

Inc., an Arizona corporation, and Oils, Inc., an Oklahoma

corporation; both by their Receiver F. M. Petree, and by

virtue of this order the name of the receiver was elimi-

nated and the plaintiffs became Farmers Mutual Royalty

Syndicate, Inc., an Arizona corporation, and Oils, Inc., an

Oklahoma corporation.

The detendants in the instant case. the respondents

here on whose behalf this brief is presented, challenged

the jurisdiction of the District Court over the subject-

matter. (R. 14-15). The challenge was sustained and the

action dismissed. (R. 45).

cialiine

ARGUMENT

Point L

Jurisdiction, dependent or independent, must affirma-

tively appear from the allegations of the complaint.

Jurisdiction, dependent or independent, must affirm-

atively and distinctly appear from the allegations of the

complaint, and can not rest upon presumptions or argu-

mentative inferences drawn therefrom.

—Norton v. Larney, 266 U. S. 511, 69 L. Ed. 413;

Smith v. McCullough, 270 U. S. 456. 70 L. Ed.

682;

Mitchell v. Maurer, 293 U. S. 237, 79 L. Ed. 338;

McNutt v. General Motors Accept. Corp., 298

U. S. 178, 80 L. Ed. 1135.

Point II.

The instant action. when brought was a new, independent

one, and the district court was without jurisdiction over the

subject-matter thereof. The Order of dismissal without pred-

judice was proper.

The instant action when brought, as reflected by the

complaint, was a new, independent one, and the District

Court had no jurisdiction over the subject-matter thereof.

The order of the District Court was proper, and the rule

announced by the Circuit Court in affirming the judgment

of the District Court is in harmony with the decisions of

this Court and not in conflict therewith.

sill

~-Raphael v, Trask, 194 U. S. 272, 48 L. Ed. 973:

Riverdale Cotton Mills vy. Alabama & G. Mfg.

Co., 198 U. S. 188, 49 L.. Ed. 1008;

Hamer v. New York Railways Co., 244 U. §

206, 61 L. Ed. 1125:

New Orleans Land Co. v. Leader Realty Com.

pany, 255 U. S. 266, 65 L. Ed. 621:

Oklahoma vy. Texas, 258 U. S. 574, 66 L. Ed. 771:

Hoffman v. McClelland, 264 U. S. 552. 68 L. Ed

845:

Fulton National Bank v. Hosier, 267 U. S. 276

69 L.. Ed. 609:

Central Union Trust Co. v. Anderson Count»

268 U. S. 93, 69 L. Ed. 862:

Cincinnati, Indianapolis & Western R. R. Co.

v. Indianapolis Union R. Co., 270 U. S. 106.

70 L. Ed. 490;

John Martin Riehle, Receiver v. Edward Mar-

golies, 270 U. S. 218, 73 L. Ed. 669:

Local Loan Co. v. Hunt, 292 U. S. 234, 78 L.

Ed. 1230;

Dugas v. American Surety Co., 300 U. S. 414,

81 L. Ed. 720;

Warren v Palmer, 310 U.S. 132, 84 L. Ed. 1118:

White v. Ewing, 150 U. S. 36, 40 L. Ed. 67;

Green-Boots Const. Co. v. Hays, 56 Fed. (2d)

829;

Cooperative Transit Co. v. West Penn. Electric

Co. (4th Cir.), 132 Fed. (2d) 720;

Smith v. Chase National Bank (8th Cir.), 84

Fed. (2d) 608;

|

ua. i

Campbell v. Golden Cycle Min. Co. (8th Cir.).

141 Fed. 610.

The receivership of the two corporations, the peti-

tioner and the Farmers Mutual, over their respective pro-

perties was not brought about on account of the insolvency

of either and was not a liquidating receivership. None of

the parties defendant in the Hopler case are parties de-

fendant in the instant case, except the National Bond and

Mortgage Company. The decree in the Hopler case is not

under fire or attack in the instant case, and no effort is

made therein to aid, enjoin, restrain, regulate, avoid, ex-

plain, or enforce said judgment; or to enforce or adjudicate

liens upon. or claims to, property in the custody of the

Court in the Hopler case actually or constructively. The

instant case has no direct relation to any property or

assets of said corporations, or either of them, actually or

constructively drawn into the Court's possession or control

by the Hopler suit. The instant action has all of the ear-

marks of a mew and independent action as distinguished

from a dependent or ancillary one, and the following rule

announced by the Circuit Court, to-wit:

“A controversy can not be regarded as ancillary so

that jurisdiction can be made to depend upon juris-

diction in original suit, unless it has direct relation to

property or assets actually or constructively drawn

into the Court's possession or control by the principal

suit.”

is correct.

wide:

Point IIL.

If the instant case was dependent when brought, the

termination of the receivership, the discharge of the receiver,

the return of the properties of the corporations to their re.

spective boards of directors, their substitution and the elimi.

nation of the receiver from the action terminated the depend.

ent jurisdiction, and the action became an independent one.

If the instant case was dependent when brought, the

termination of the receivership, the discharge of the re-

ceiver, the return of the properties of the corporations to

their respective Boards of Directors. their substitution and

the dependent jurisdiction, and the action became an in

dependent one; and the decision of the Circuit Court of

Appeals upon this phase of the question was proper and

not in conflict with the decisions of this Court.

—28 U.S.C. A., Sec. 80 (Judicial Code, Sec. 37);

Boston & Montana Consolidated Copper &

Silver Min. Co. v. Montana Ore Purchasing

Co., 186 U. S. 631, 47 L. Ed. 627:

Cabaniss v. Reco Min. Co. (Sth Cir.), 116 Fed.

318;

Johnson vy. Thomas, 16 Fed. Supp. 1019;

In Re Volland (7th Cir.), 83 Fed. (2d) 680:

In Re Converse-Hough Co., Inc. (D. C. N.Y).

27 Fed. (2d) 368:

Clauss v. Palmer Union Oil Co. (9th Cir.), 222

Fed. 870;

Barker v. Eastman (1st Cir.), 206 Fed. 865;

em We

McNutt v. General Motors Accept. Corp., 298

U. S. 178, 80 L. Ed. 1135;

Indianapolis v. Chase National Bank, 314 U. S.

63, 86 L. Ed. 47.

CONCLUSION

The opinion of the Circuit Court clearly and cor-

-tectly states the situation as reflected by the record, and

| the rules of law therein announced are correct, in har-

mony with the decisions of this Court, not in conflict

therewith, and the petition should be denied.

me

ject Respectfully submitted,

J. B. Dubey,

1501 Apco Tower,

Oklahoma City, Oklahoma,

Attorney for Respondents, G. T.

Blankenship, Daisy O. Blanken-

ship, Lou Shepherd, National Bond

and Mortgage Co., Royalty Holding

Co., Oil Royalties, Inc., and Equal

Royalty Co.

DupLtey, DuvALL & DuDLey,

Of Counsel.

January, 1945.