Jurisdictional Statement — Columbia Broadcasting System, Inc. v. Atkinson

Supreme Court brief1958

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Ee M, JACK BARSBY nN,

‘ alee Chet tnotceinetel

RADIO “coRPORA

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Senger ssn L poe

bi * Los. Angeles 4, ‘California, is

Attorney for Decca Records, Inc. and Coral Records, Inc.

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- SUBJECT INDEX

Opinions bclow. seit . vet esseeceee “ 2

"Jurisdiction - eet

‘Question presented seisiithintnndotaiipleiniiahesacucs ee 3

Statutes involved- “an sel Seo acai 4

Statement of tock... is j eahetiacac iaspininnibiieai 4

" This court has jurisdiction of the pen ee Sees i WR Biniomins. ™ |

A., The federal question was raised and ee eee TT

B. The judgments-below were “fina?” within - meanigg: ot

U.S.C. Section 1257......:-......: aa 9

C. Appellants have standing to raise the aienetaon seal. 10 _

D. The appeals are not moot.. ees et Loonies Ai

The federal question is aay — sdceiniibia ia joi —. idee 14

Conclusion _.... none eesouentanipnenevintsesmmactocensiemvenrtet om — ae 22

| Appendices : - - a

Appendix A. ‘Opinion of the Supreme Court of the State

of California ., weseeteeseeees App. P. 1

. Appendix B. Memorandum for a __.App. p. 13

Appendix, Cc. Statutes involved. .......... incenieiicansckies App. p. 17

Appendix D. Writs of SE ers ene aa ROME App. SS. ae

TABLE OF AUTHORITIES CITED’ =

Bandini Petroleum Co, v. Superjor Couri, 284 U. S. 8. aces 3, *

" Bank of California v. Superior Court, 16 Cal.'2d 516, 106 P,.. :

2d °879 " , i .. 10

‘Bank of Jae v. First National Bank, 258 U.S: a. rane es

ane 17, 18, 19, 21, 22, 23.

Sonsiaiiake v. Peay 261 U. S.: 21g. , 12

Chicago, R. I. & P. R. Co" v..Sturm, 174 U.S: 710... 15

Dahnke-Walker Milling Co. v. Bondurant, 257 U: S. 282........3,° 8

_ Dakota County v. Glidden, 113 U. S. mm : ; 13

a es and M. R. Co. v.. Michigan R, Coma, 240 U. ‘Ss.

564 ibiatiamwrnendy =. S

Dunlevy v. New York Life Ins. -Ca., 204 Fed. o.....8 Sicias 21

Estin v. Estin, 334 U. S. 541 | 7 17, 18, 21, 22, 23.

Fox River Paper Co. v. Railroad Commission; 274 U. S. 651...

Harris v. Balk, 198 U. S. 215 eee i ceil mee 19.

Hartman Ranch Co. v. Associated Oil Co., 10 Cal. 24 232, 73 a

P. 2d 1163. see ceiidllcegiiididndalhishiniiciinbindaimbingghocnmeimescieion w@

Hitchman Coal. & Coke Co. v. Mitchell, 245 -U. §. 229 nn esisacizx. 1

~__ Knouse v. Nimocks, , 8 Cal. 2d. 482, 2 Og ASSES eet

Earid v. Dollar, 341 U. S29 -scccscpenceesowsesineecsnerne ie ae 14.

Leslie Miller, :Inc. v. Arkansas, 352 U. S. | ee g-.

Liberty Bank v. Nonnenmann, 96 Cal. Apel 478, 274 Pac. $68... 20;

Male v. ‘Atchison, T.&S.F.R Co., 240 U. S. eee 6

‘ihay v. Anderson, 345 U. U.S. ei irieiectsit = acts

McGee Vv. International Life Ins. Co, 355 U. S. willie (No. 50,

‘O. T.. 1957) ihitiessei eee

_ Natural Milk Prodixess v. San Francisco, 317°W Ss. 423. erat

Rents New York Life Ins. Co. v. Dunlevy, (241 USS. Be ccccecces sak sath Sie

| 10, 17, 18, 21, 22, 23 .

O'Hara v. MacConnell, 93 U. S. _..... ates itis 12

cas oo tots ele aay iii, - aye ; ee oa,

" Pattersod v. Crowell, 15 Cal: App. .105; 13 Pac. 700............-. 20

_ Penniagtoa v. Fourth National Bank, 243 U. S. ince 19°

-Pennoyer v. Neff, 95 U. S. 714 A Gees

People v.' Woods, 19 Cal. App. 2d 556, 65 P- 2 ween 2

Pierce v. Society of Sisters, “268 U. S, 510..\..... Lecsinsnonen top lcactsoenes 11

Porter v. Lee, 328 U. S. 246 =" can ea eon 12, 13

Rescue Army v. Municipal Coust,331 U. S. oe *3,°9

* Richardson v. “McChesney, aes oe...

Riley ‘ v. Ingetnationas Brotherhood of Teamsters, 336 U. & !

Sa ie re 8 AOA RL SIE SER TPO) RE 13

Rio Grande Western R. Co. v. Solaten. 239 U. S. 44.......13, 14

Security Savings Bank v. California,’ 263 U. S. ae

<> Shub v. ‘Simpson, 340 U. S. 861, 340 U. S. ins 12

"Siler v. Louisville & N. R. Co.,-213 U.S. 17S .ccccscceressreseeseeeeene 11

Standard Oil Co. v. Johnson, 316 U. S. 481........ nee oaiilieas $.

Standard Oil Co. v. New Jersey, a ea eee) ae,

Sterling v. Constantin, 287 U. S. 378.ccscce et ee ee ee

<i The First National Bank v. Reed,-198 Cal. 252, 244 Pac. 368....20 |

“Truax v. ‘toh, 239 V...S. 33... sai inensherineneetiineonttote ‘Ly

United States v. Mupsingwear, 340U. S. 36.ccccsccccciccsneesetne 13.

Vanderbilt v. Vanderbilt, 354 U. S.416..-ccc.17, 18, 21, 22, 23 |.

Weston v. Charleston, 2 Pet. 448: ‘putkcdlaikacceeseeas Es

Willis v. Lauridson, 161 Cal. 106, 118 i 10

‘Younger v. Jotdan, 42 Cal. 2d 757, 269 P.-24 616...cecssecces-- ioe

| | RJLEs 3

California Rules on Appeal, Rule SEO ARREO a =

. We

STaTuTss oi PAGE

California Code of Civil Piimiban: ‘See. 412... ister

ae Pik 1,3, 45,67, 8 10, 1, 18, 16

‘Calitornia Code of Civil Procedure, Sec. = SEE iad 4

California Codergt Civil Procedure, Sec. 417.4, 15, 20

California Code of Civil Procedure, Sec. 1084 EON waren

“California Code of Civil Procedure, EN Aas

California Code of Civil. Procedure, Sec. 1086.00.02 nn 2

California Statutes of 1951, Chap. AS, is i‘

California Statutes of 1951, Chap. 935, Sec. 1... ae

California Statutes of 1951, Chap. 1737; Sec: 48............ ae

United States Code, Title 28, Sec. 1257 (2) nveeerecneenernrerd 8, 14

United States Code, Title 28, Sec. 2103_......... ‘ :. 14.

| United States Constitution, F ourteenth’ Amendment. 3, - 6, 8, ed

" TExrBooKs Sen

o—— & Gressman, _— Court Practice (24- Ed., 1954), Pp.

208, 362”... , us W2 .

te ae .

» Stumpberg Conflict of Sees, P. 110, note i ae 19

“4N THE

“

‘Supreme Court of the United States

Ocroser 2 Tek, 1957.

: ee | Ko. a | 2 ae :

COLUMBIA ‘BROADCASTING SYSTEM, INC, CBS TELEVISION.

FILM SALES, INC, NATIONAL BROADCASTING COMPANY,

INC. CALIFORNIA’: NATIQNAL PRODUCTIONS, INC, LOEW'S |

INCORPORATED, REPUBLIC PRODUCTIONS, INC, REPUBLIC .°

_ PICTURES CORPORATION and HOLLYWOOD Teor ame

—_ IN ‘“

WILLIAM (BILL) ATKINSON, JACK. ss antieen ALFRED E. BRAIN;

« CLARENCE P. CARPENTER, RUSSELL A, CHEEVER, and HAR- -

RIET CRAWFORD, oe taal and on behalf of all other ‘instrumental

is musicians | a. situated, ee

Kom . _A pelle. eer:

ee FTE

RADIO CORPORATION OF AMERICA, COLUMBIA BROADCAST. __

ING SYSTEM, INC., CAPITOL RECORDS, INC.,. LOEW'S _ IN-

= / ECCA RECORDS, INC., and CORAL RECORDS,

i . eee Appellants, _

; os. : i

Sonnaon. JR. BURNETT -F. ATKINSON, ROBERT

WIN VANCE BEACH, ROLAND E. BUNDOCK, , LAW- :

BRIN, 5 B. BUNKER and GEORGE CALLENDER, individually and:

on belli of all other instrumental musicians similarly situat :

/ a Appellees. .

i : we ie -

On aoe’ From the Supreme Court

Ae : -* the State of California.

: JURISDICTIONAL STATEMENT. :

These are appeals-from final judgments of the Supreme

Court of the- State of California, entered in two original |

proceedings efote it for writs’ of mandate, adjudging’ _

that under Sectidn. 412 of the California Code of Civil

Procedure, the. Superior Court of the State of California,

in and for the County of Los Angeles, has jurisdiction ‘

over two: actions by appellees against these appellants

and others and | ordering said court to assume - and exercise Mey

jurisdiction over. applications iby appellees £6r 1 preliminary

‘ injunctions and for ae. ofar sweminer: +. :

The opinion ory decision a the California Siasie ,

E Court” is reported unofficially at “49 A. .C. 339, 316 .

_. P. 2d 960,-and a copy is appended hereto as Appendix A.

The opinion of the District, Court of. Appeal ‘(which has

been. superseded. by the _opinion of the California. Su- —

preme. Court), will not be officially reported but is -re- |

ported unofficially at 310 P. 2d 145. The memorandum -

opinion of: the Superior — Court for Los| Angeles County

in related Proceedings entitled Atkinson, et al.. v. Ameri-_

can Federation of Musicians; et al.; and nilerson, etal.

v. Arigrican Federation of Musicians, et al., is Mameported;

but i8 ean hereto as Appendix B.

J urisdiction.

The proceedings ‘below wert original proceedings for i

writs of mandate brought by appellees in the California

~ Supreme Court pursuant to ‘Sections 1084, 1085 ‘and

1086 of the California Code of Civil Procedure (West’s _

Ann. Cal. Codes, Code Civ:“Prog, §§1084-1086) ‘and’ ~

Rule 56 of the California Rules on Appeal (36 Cal. 2d

41). ‘The judgments of the California Supreme Court

were entered on November 5, 1957 [App. A], and notices

_ of appeal were filed in that court on December 3, 4. and

13, 1957. The jurisdiction of this Court-is’invoked under

*This Jurisdictional Stationcat is filed on behalf of the enilail

-’ named_in the caption. The. American Federation of Musicians

which has also appealed from the judgment below may be ex-

j “pected to file'a separate Statement.

28 U. S. C. §1257(2). — ‘believed - to sustain the :

as jurisdiction are, €:9., Dahnke-Walker ‘Milling Lo. ‘v.

oridurant, 257 U. S. 282; ‘Standard Oil Co. v. Johnson,

- 316 U. S. 481, and Lesite Miller, Ine: v. Arkansas, 352 .

- “U>°S. -187,. holding ‘that. a proper. case for appeal is .

- presented where the validity, of a state ‘statute, as con-

strued and applied, is drawn ‘in question: on. the ground

of repugnancy to the Federal Constitution ; cand. Bandini

Petroleum Co. v. Superior Court, 284 U. S. 8, 14; Detroit

and M:R. ‘Co. v. Michigan: R. Comm'n, 240 U. S. 564,

570-571, and Rescue. Army. v. Municipal Court, 331 U.S. |

ue 549, 566°567, holding that | a. judgment, granting or deny-

~ ing an extraordinary writ is “final” despite the: fact that

' * it does not completely determine on the merits the under-

lying controversy between the parties, or preclude further

related proceedings between them. See pp. 7-9, infra.

Question Presented.

Is Section 412 of the California Code of Civil: Pro- ae

cedisre repugnant to the Due Process Clause of the Four-

teenth. Amendment to the Constitution of the United States

‘when such statute is. construed and applied (as it was b§

the California Supreme ‘Court) to authorize adjudication .

: of the rights of a nonresident over, whom | i® has no

personal jurisdiction, - in*a California - action brought

against such nonresident, as trustee under a trust’ agree-

- ment and against trustors who were found and personally

served in California, for the purpose of having it adjudged |

that such trust agreement is invalid and that’ the trustors . :

are obligated to. pay to plaintiffs. the sums which they.

, agreed. to pay to the nonresident trustee and which he

ae agreed to:use for specified trust purposes?

‘

- Sections 412, 413 at 417 of the California, Code’ of

--. Civil Procedure (Cal. Stat, 1951, ch. 1737, §48, ch. 43,

§1, ch. 935, §1, West’s: ‘Ann. Cat. Codes, Code Civ. Proc., : ’

S82, 413, 417) are set. forth in Appendix: C hereto.

Statement of | Pacts.

These are , appeals from final judgments of the Cali-

fornia Supreme Court entered | in two original proceed-

ings - before it for writs of mandate. The writs of man-

~ date command ‘the Superior Court for Yos Angeles County

to assume and exercise jurisdiction over applications by

appellees for preliminary injunctions and appointment of.a

receiver in two actions ‘entitled Atkinson, ct'al. v. Amer-

, ican Federation of Musjcians, et al, and Anderson, et al. *

ee American Federation of. Musicjans,. et. al. The Su- .

perior Court for’ Los Angeles County had refused’ fo *

entertain appellees’ applications on the ground. ‘that under

‘the. Due’ Process Clause: of the Fourteenth Amendment

_it had no power to determine the rights - ‘of Samuel R.

Rosenbaum, an —— Party, in the . absence of

. jurisdiction over his person. ’ :

The actions, to which these proceedings for. aed:

nary writs relate were brought by appellees, on behalf of ©

themselves and other musicians similarly situated, against |

the Ame ican Federation of Musicians, Samuel R. Rosen-

. baum, anda number of companies, including thése appel-

- Jants, an are engaged i in the manufacturing f phono-

graph records. (the Anderson case) or the li

ing of

theatrical: motion) pictures for use on television (the Be

Atkinson case). In. both actions it ‘was alleged \that the -

Federation had breached ‘a duty, imposed - it by.

= aw as, comiaiin bargaining agent fais musicians employed =

in the motion picture and recording industries, by causing oy

, the appellant companies to enter: into certain agreements

with Rosenbaum rather than to pay appellees additional’

é : amounts in the form of wages, ‘The disputed agreements

_. Obligated appellants to’ pay large sums ‘of: money ‘ ‘to.

Rosenbaum, as trustee, and obligated Rosenbaum to “use -

such sums for the purpose: of arranging and organizing -

free. public performances by jpstrumental musicians in a. -

manner calculated to contribute to public. knowledge and.

appreciation of music. In both actions, the relief de- |

_ manded is an adjudication that the agreements between

appellants and Rosenbaum are invalid; that Rosenbauin

has no interest in the payments’ described therein; and

, . that the - -companies are obligated to- pay ‘appellees ‘the.

amounts. which - -they had agreed to. pay Rosenbaum, as

‘trustee, free of any. obligation on the part of appellees

. to use the amounts for the specified . purposes. Pending

such an. ntiudicata

injunction forbidding - the making of | payments ’ to the

trustee, -and the appointment of a ‘receiver "to collect and

hold such payments.

| Samuel R:: Rosenbaum, a ‘mittens of New York, aid

- not appear and. was not personally served"‘within the ~

State of California. He was, however; served construc-

‘tively und color of the authority,‘ granted in §412 of

_ the Califcbnia Code of. Civil Procedure by delivery of a

~ summons and copy of the complaint to him,in New York. -

* These appellarits, who were . personally served within. the

_ State, appeared in opposition to appellees’ demands for a |

preliminary injunction ‘and contended, inter’ alia, that .

Rosenbaum was an _indispensable- Lak to Such actions ;

n, each group of appellees sought ee

° _ ‘ ee ; ~

me that ‘assumiption ra the court of jurisdiction’ to determine

‘the tights of ‘Rosenbaum and_ these appellants without

, ‘personal jurisdiction. over Rosenbaum would constitute a

denial of due process \of Jaw in violation of the Four-

teenth Amendment to the. Constitution of the United

* States; that-if §412 of the Code of Civil Procedure _

- should be cortstrued to authorize’ such an assumption of

jurisdiction it would be. ‘repugnant fo the Fourftenth

Amendment, and that the application should therefore

be denied. In a memorandum opinion filed: January 24,

1957 [App. B], the: Superior Court for Los nthe

»,

Tysr.

‘County indicated that it was prepared to: sustain thes

appellants’ contentions as to lack ‘of jurisdiction and woul

issue an ordeg denying appellees’ applications.

_ Thereafter, appellees brought ‘two proctedings i in- the |

appropriate California District Covzt of Appeal entitled

Atkinson, et al. v. Superior Court and Anderson, et eae

v. Superiar ‘Court for writs of mandate to compel the, |

Superior Court for Los Angeles Couffity to gssume and ©

exercise jurisdiction. over their applications for preliminary _

injunctions and the appointment of a receiver. In accord-

ance with Rule 56 of the California Rules.on Appeal, the

petitions for writs of mandate were served upon these

appellants as real parties in interest. These . appellants

made returns by filiffg demurrers and in support t thereof

made the above stated contentions based on the Four- «

teenth Amendment. The District Court of Appeal re-

_ jected these contentions and ‘gave judgment for appellees.

-310 P. 2u 145. Subsequently, however, the California

Supreme. Court granted. appellants’ petition for hearing,

a step. which under California’ practice had the effect f

of. vacating | the opinion ‘and judgment rendered in the

pa ee = | | pe

District Court of Appeal.* Thg proceedings iff ‘the ‘Cali- .

fornia Supreme: Court which followed : were, therefore,

in the nature of original proceedings brought by appellees

. rather than proceedings brought by ‘appellants’ to secure.

- appellate review of. the°adverse judgment of the District -

Court of Appeal.

_ Ta the California Supreme Court, appellants repeated

the contentions set forthsabove, tendering for decision

'. by their briefs and oral argument / the issue, among

others, of whether Section 412 of the California Code

‘of Civil Procedure was: repugnant to the :Fourteenth

Amendment if construed and applied to authorize assump-

tion and exercise of jurisdiction over Rosenbaum and

these appellants in the ‘basic actions: By its jwdgments:

filed November 5, 1957; the court decided this issue

adversely to appellants [App. A]. Thereafter -it issued a

Spwrit of mandate in each case [App: D]. ‘Appellants

_.. appealed to this Court by their notices of appeal filed

~ December 3, 4 and 13, 1957.

This Court Has Jurisdiction of due Appeals.

A. The Federal Question Was Raised and Decided.

The validity. of Section 412, California Code of Civil

Procedure, as construed and applied,. was “drawn in

question” in the proceedings below not only @y appellants

but by the California Supreme Court. In its. opinion,

_ the court stated the issue before it as follows [App. A,

pp. +5]i6: | ‘ |

| “Code of Civil "Procedure Section 412 rovides:

“Where the person on whom service is to be made

BZ 0.

*See Knouse v. Niméches, 8 Cal. 2d 482, 483- 484, 66 -P. d 438,

438-439;. People v. Woods, 19 Cal. App. 2d 556, 560, 65 P. 2d

940, 942. : *

‘sail out of the State .. . and it

appears . . . that it is an dction which: relates

to or the subject of .which is real or personal prop- -.

erty in this State, in which such | person defendant :

‘has or claims a lien or. interest, actual or 3

° cotselegit therein, of in which the relief demanded

- consists wholly | or in part in excluding such person

_ from any irfterest therein, such co@rt, or

Ye Ghia may make.an order that the service be made

( ‘by’ the publication of the summons.’ Section 413 .

provides that- personal service outside the state is

equivalent to. publication. Plaintiffs | claim that the

employers’ obligation to make the payments involved

‘is one owing to them instead of to the trustee.

That obligation is a chose in action. . . . The quies-

| tion presented, therefore, is whether the chose in

action in question may be treated as being within

this state. within the meaning of section 412 for

purposes of exercising in rem or quasi in rem. juris-

diction over it in these: actions.”

The. court, then held that Section 412 was applicable in

the circumstances before it, reviewed at length the deci-

sions of this Court relating to -the jurisdiction allowable

to state courts under the Fourteenth Amendment, and

_ decided in favor of the validity of Section 412 as thus

applied. [App..A]. Under the circumstances, it 1s clear

that the decision below is reviewable by appeal under

, 2 Uv. S.C. Bssr(e). . ee Dahnke-Walker Milling Co.

_y. Bondurant, 257 U. S..282; May v. Anderson, 345 U. S.

528; Leslie Mller, Inc. v. Arkansas, 352 U.S. 187..

B. The Sicilia Below Were “Pinal” Within the — :

. ing of 28 U.S.C. Section 1257.

“In Rescue Army v. Municipal Court, 331 U. S. 549,

| 565-566, this Court followed and confirmed a line of

decisions. extending over: more than a‘century in holding

that proceedings to obtain extraordinary writs are sepa-

. rate and distinct from the actions to which. they relate,

and that judgments entered in such proceedings are “final”

regardless of whether further litigation in. such other

-actions is contemplated. See Weston v. Charleston, 2 Pet.

448, 464; Bandini Petroleum Co. v. Superior Court, 284 |

U. S. 8, 14; Detroit and M. R..Co. v. Michigan R.3R.

~ Comm’ n, 240 U. S. 564, 570-571. In the Réscite Army.

case, the Court went on to conclude for other reasons that —

its appellate jurisdiction should not be exercised in the. cir-

cumstances there present. Recause substantive constitu-

tional issues of great scope and difficulty were involved;

because the issues. were posed abstractly, without any

factual basis of record; and because it was not possible

to determine with precision what issues were necessarily

presented for decision, the Court . concluded that the

judgment | lacked an element. of ripeness .requisite to Su-

preme Court review. -The cases at bar, however, present

no such ‘obstacles to effective review. The legal issue

presented for decision is narrow and unambiguous, and °

will not. be clarified in any respect whatever by further

litigation that may ensue between the parties to thcse

appeals. All facts relevant to decision appear.of record.

Accordingly, under Rescue Army as well as. the decisions —

there reviewed and confirmed, the judgments below are

“final” and these appeals fall squarely within the —

tory jurisdiction of ‘this Court.

_” 5 : : r

—10—

Cc. Appellants Have Standing to Raise the Question

| | Presented. } ey

The question presented on these appeals is* whether, . .

under the Due Process Clause of the Fourteenth Amen¢- .

ment, Section 412 of the California Code of Civil Pro-

cedure is unconstitutional as applied in’ these. cases. If

‘Section 412 is unconstitutional, Rosenbaum, the defendant

trustee, is not before the California court in the basic.

actions. In the absence of jurisdiction to determine Rosen- -

baum’s. rights, a judgment of the California court requir-

ing these appellants to make the contractual payments to

' appellees rather than to Rosenbaum would not be erftitled

to full faith and credit in the courts of other states. See

‘New York Life Ins. Co. v. Dunlevy, 241 U. S. 518. Such

a judgment would. not, therefore, protect these appellants

‘against being compelled to pay- the same obligation a

second time under a judgment in an action in another -

state, brought by Rosenbaum, that he, rather than appel-

lees, was entitled to receive the contractual payments from

these appellants. dee ea |

Under staté law, Rosenbaum is an indispensable ‘party

to the basic ‘actions. so far as any relief against these —

appellants ‘is concerned, and without first its obtained

jurisdiction over Rosenbaum the California court has no

jurisdictien to proceed against these appellants.* More-

‘ over, as a matter. of federal constitutional Jaw, Rosenbaum

wee

*See, generally, Hartman Ranch Co. v. Associated Oil ‘Co., 10

Cal. 2d 232,°73 P. 2d 1163; Bank of California v. Superior Court,

16 Cal. 2d $16, 522, 106 P. 2d 879, 883-884; Younger v. Jordan, 42

“Cal. 2d 757, 269 P. 2d 616; Willis v. Lauridson, 161 Cal. 106,,117,

+18 Pac. 530; and the memorandum of the Superior Court for Los

Angeles County :n the basic actions [ App. B].-

_——pga---

-is an indispensable party so far as any relief against these

appellants is concerned, for to allow the California court

* to compel payment by appellants under a judgment not

entitled to full faith and credit elsewhere would constitute

a denial of due process of law in violation of the Four-

teenth Amendment.* See 5 tandard Oil c o. v. New Jersey,

‘341 U. S. 428,431.

Under the circumstances presented here, a decision as. —

to the constitutionality of: Section 412 of the California

Codé of Civil Procedure will necessarily -be dispositive of

the rights: of appellants in these proceedings, and appel-

-lants therefore have standing to prosecute these appeals.

Cf. Pierce v. Society of ‘Sisters, 268 U. S. 510; Hitchman

Coal & Coke Co. v. Mitchell, 245 U. S. 229; Truax v.

Raich, 239. U. S. 33.

Pe The pon Are Not Moot.

Suggestions of ookatibe mootness may be made in ‘these

cases by reason of the- following events which have oc-

_curred since the entry of the judgments below: (1) In

b obedience to the judgments from which these appeals are

takeris” which have not been stayed, the _Superior_ Court

for Los Angeles ‘County has entertained the applications .

for preliminary injunctions and appointment of a receiver

to which these proceedings for extraordinary writs relate;

and (2) the trial-court has denied appellees’ application

for preliminary relief in one of the two cases ( Atkinson,

. .

*Under such cases as Siler v. Louisville & N. R. Ce 0., 213 ts ‘

175, this Court need not consider whether Rosenbaum is an in- .

dispensable party to these proceedings as a matter of federal con- ©

stitutional law, since. state law furnishes adequate support for that

conclusion. The jurisdiction of this Court is not affected if the

existence of the right for which constitutional protection is claimed -

depends upon State law. Fox River Paper Co. o. v. Railroad Com- +

mission, 274 U. S. 651, iia

ported jurisdiction to grant or deny preliminary injunc-

= oo

~ et al. v. Aiieviom Federation. of Musicians, et al. ), and

granted it in the other (Anderson, et ‘al.'v. American

Federation of Musicians, et al.). Appellants believe, how-

ever; that no substantial problem of mootness is presented.

The only basis for a suggestion of mootness would | be

the farjiar rule that an appeal is moot when the act

which is sought to be compelled or prevented has already

- occurred. See Brownlow v. Schwartz, 261 U. S. 216;

Richardson v. McChesney, 218-U. S. 487; Shub v. Simp-

“son, 340 U. S. 861, 340 U._S. 881; Stern & Gressman, |

Supreme Court Practice, pp. ‘208, 362 (2d ed. 1954).

That rule applies, however, only when the act involved

has been completely and “irretrievably” performed and

“the nature of, the case is such that reversal by the Su-

preme Court could have no effect.” Ibid.; see Porter v.

Lee, 328 U.'S. 246, 251; O’Hara v. MacConnell,.93 v. S.

150, 154. In neither of the cases at” bar has the trial

‘court “completely” or. “irretrievably” exercised its” pur-

tive relief to Fs pursuant to the judgenente from

— a

the trial court has pare olaintffs preniaec for eottig

"liminary relief, but contitiues to have the power and duty

fo grant it in the event. plaintiffs should be successful

on any appeal which they may take from the. court’s

order denying-such relief or in the event plaintiffs should

make an. appropriate showing . ‘upon another application

filed before a final judgment on the merits is rendered.

in the Anderson case, preliminary relief has actually

been granted, and the trial. ‘court has expressly retained

jurisdiction with a view to dissolving its order in the

event that this Court should reverse the judgment below. |

Under the circumstances, it is clear that a decision by |

“

—_—i .

this Court would .have an immediate and» decisive effect

upon the subject matter of this appeal, and therefore that

the appeal is not moot. C f. Porter v. Lee, supra; Dakota

* County v. Glidden, 113 U..S. 222, 224. ©

Moreover, the judgments below adjudicate more: than

the narrow. issue of whether the Superior Court for Los.

Angeles: Cowity has jurisdiction to entertain applications

for. preliminziry relief. They adjudge that Section 412.

of the Calif(rnia Code of Civil Proceduré is constitu-

tional as applied in the basic actiéns, and hence that -

” the Superior Court has jurisdiction in all respects to

adjudicate the rights. of, Rosenbaum and these appellants.

In these circumstances, the appeals herein will not be-

-come moot at least until a final judgment is entered in

the basic actions,* cf. Sterling v. Constantin, 287°U. S.

378, 386, and probably not then. See Male v. Atchison,

T.&S. F. R. Co., 240 U. S. 97; Rio Grande W esters R..

Co. v. Stringham, 239 U. S: 44.

In the event that this Court should contlude that ‘aie |

| ~of these appeals i is moot, it should vacate the appropriate

"judgment below and remand the cause to the California

; Supreme *Court for further proceedings. Natural Milk

Producers: v. San Francisco, 317 U. S. 423;. Riley _v.

° International Brotherhood of ‘Teamsters, 336 U.S. 930;

compare United States v. Munsingwear, ‘340 U..S. 36,

*Should this Court note probable jurisdiction, the Superior

Court for Los Angeles County. will undoubtedly refrain from enter-

ing a final judgment pending this Court's disposition of these ap-

peals. If necessary, an application to stay entry, of :final judgment

. will be made in - California Supreme Court, and; if it should

_ be denied, then in this Court. It is not expected that any. decision

on the mérits will be reached by the trial court hefore this Court

acts upon this Statement and any, motion to dismiss or affirm that —

-may-be filed.

i he

39. ‘We believe it is clear, however, that neither appeal

is moot: -Accordingly, all the requisites of appellate juris- -

diction under 28 U. S. C. §1257(2) are present and a

decision on the merits is required of this Court in ‘both

cases.* ; . fan

“The Federal Question Is Substantial. —

Since Pennoyer v. Neff, 95 U. S. 714, this Court has

consistently held that state ‘court judgments are void under

the Due Process Clause of the Fourteenth Amendment if- .

rendered. without’ jurisdiction over either the person or

the property of the defendant. In the recent ‘case of

McGee v. International Life Ins. Co., 355 U. S. — (No.

50, O.T. 1957), this Court redefined the limitations’ im-

posed by the Due Process Clause on the power of state’

*Out of an abundance of caution, appellants wish to state thei-

views’ as to the appropriate course of action for this Court in the

event of_a decision by it that these appeals are imprevidently taken.

Should this Court dismiss these appeals as C4108, the ‘ taken

and then deny certiorari pursuant to 28 U. S.C. §2103, thus aflow-

ing the judgments below to. become final, the- California courts may

hold that further consideration of the constitutional issue in the basic

‘actions is preciuded by the doctrine of res judicata. There ts

some: indication that review by this Court of the constitutional issue

could -not then be had because of the existence of an adequate

state ground for the decision below... Cf. Rio Grande Western R.

Co. v. Stringham, 239 U. S. 44. Bul in the absence of a decision

on the-merits by this Court, Rosenbaurn would still be free to

contend in New York (in an action which he has already com- ¢

menced for a declaratory judgment against appellants and the class

represented. by appellees) that any final judgment in California

which may be rendered in favor of appellees is void for lack of.

jurisdiction over: him. Should he prevail, appellants. would be

compelled to pay twice an amount. for which they. can be justly =~

liable but once. Accordingly, if this Court should he disposed to °

disntiss the appeals, it is requested that the Court either (1) grant

a writ of certiorari pursuant to.28 U. S. C. §2103; or (2) continue

these cases on the docket pending disposition of the basic actions -

(cf. Land v. Dollar, 341 U. S. 737): or (3) deny the writ “without

prejudice” to further consideration of the constitutional issue if *

raised in subsequent Sco

~—

——, wes re

courts to exercise personal jurisdiction without service of

process within their boundaries. In. the cases at bar,

however, as. the court below noted in i ) ;

A, p. 9], it is, beyond dispute that firisdiction over - the

person of Samuel R. Rosenbaum, an indispensable party,

is lacking under the. statutes of California.* The sole

issue in these cases, therefore, is whether California has |

~ ‘such jurisdiction over Rosenbaum’s property as to justify —

_an assertion of power to adjudicate his rights therein.

It is entirely clear that state courts have jurisdiction to

i determine the. rights of absent : parties in any tangible

property which’ is physically ‘located “within the state.

The “property” in: quéstion in’ this case, however, is *in-

ible property having no physical existence and hence -

no location. In cases involving intangible property, this

Court has long held that where ‘a debtor owes money to

an absent creditor and where a court has personal’ juris-

—. diction over the debtor, such court: may, through proced-

. ures such as garnishment | and escheat, adjudicate: plain-

tiff’s rights against the absent. creditor to the extent of

the indebtedness. “See ¢.g., Chiéago, R. I. & P. R..Co. v.

Sturm, 174 U. S. 710; Harris’ v. Balk, 198 U.S. 215:

| Pennington v. Fourth National Bank, 243 U. S. 269:

Security Savings Bank v. California, 263 U. S. 282;

Standard Oil Co. v. New Jersey, 341 U. S. 428. The.

rationale of such cases. is that a plaintiff garnishor or

escheat claimant who can secure jurisdiction over the

_..person of a party who is obligated to. the absent defen- ;

dant, and thereafter can reduce the intangible property

“to possession by mes payment on behalf of the

*See Section 417 - the California Code of ine Se re-

' printed in Appendix C, infra.

< *

absent defendant, can then oneniea to assert his claims

against. that defendant as if he had in the first instance

—16—- We

_ attached that defendant’s tangible property. within ~ the

state. Under such procedures, a state court can validly :

adjudicate the rights of the defendant although it has no

jurisdiction whatever over his person, and the decision ©

will be conclusive to the extent of his interest in the

property’ “garnisheed or escheated. Sig toe

- Although appellees in these proceedings have. relied

in all the. courts below on the above cited cases, the

slightest inspection of them shows. that. they are not in

point. They hold that _ jurisdiction to determine the rights

of a defendant over whom a state court has no personal -

jurisdiction can be secured if the local plaintiff alleges

‘ and proves, that the absent party. has a valid, recoverable

| Shim against a party who Is personally before the court,

and hence: has “property” within the state which can be !

subjected to local claims. The appellees in the cases at

bar dflege the opposite: that Rosenbaum, the -absent,

defendant, has no rights whatever in the intangible prop-

erty involved and hence has no proferty within the state

on which a judgment can operate. The purpose of their

action is to secure an adjudication that appellants are not

indebted to Rosenbaum, but are, instead, indebted to them.

As the court below said, “Plaintiffs claim that the em-

ployers’ obligation to. make | the payments involved is one

owing to them instead of to the. trustee.” (Emphasis

- supplied ) [App. A, p. 5.]

The decision of the court below that Section 412 of

the California Code of Civil Procedure is: ‘constitutional

as applied, and hence that appellees’.actions' can be main-

tained, is not only without support in the relevant per- —

™ e

? : : 7 : —17—

‘missive decisions of this Court but is squarely 1 ‘in conflict

‘ with the decisions in New Y ork Life Ins. Co. v. Dunlevy,

241 U. S. 518; Bank of Jasper v.. First National Bank,

258 U. S. 112; Estin v. Estin, 334 U. S. 541, and Vander-

bilt v. Vanderbilt, 354 U. S. 416. .In each of these four

cases, a state court had jurisdiction over the person. of

an alleged debtor. In each, jurisdiction over the person

of the defendant creditor was lackirig. In each, the relief z

sought by the party attempting to sustain the jurisdiction

was an adjudication that the absent creditor had no rights

- in the intangible property in question. In alb four cases

this Court held squarely that a judgment’ purporting to ~

establish that an absent party ‘has no intangible property

7 rights against.an alleged debtor. is necessarily personal

in character, and hence is. void under the Fourteenth |

“Amendment .in the absence of personal jurisdiction Over ~

the absent party. “iecgae |

The grounds on which the court below sought to dis-

tinguish the cases cited are untenable. The Dunlevy, Estin

and Vanderbilt cases were distinguishable, it said, because

‘in each the. . proceedings: were instituted by the debtor in a

forum of his own choice tather than by a party asserting

a claim to the debt.’ This assertion is. inaccurate as to the

Dunlevy case, for there, loedl creditors of the absent party,

Mrs. Dunlevy, caused a garnishment to-be levied: upon the .

basis of which a rule to show causé was issued against —

the insurance company and the two insurance policy. claim-

ants—Mrs. Dunlevy and a Mr. Gould—for the purpose of

having. adjudicated the ownership of the policy. In re-

sponse to the rule to show cause, the insurance company ~

filed its bill of interpleader. See New York Life Ins. Co.

- v. Dunlevy, 214 Fed. 1, 5-6 (9th Cir,). Therefore, the

forum was chosen not by the debtor but by Mrs. Dunlevy’s

, —18—

creditors.* Moreover, in each of the three-cases it is clear

that the identity of the party initiating the suit was deemed

irrelevant, and that the effect of the judgment sought on

‘the absent party was deemed; decisive. See particularly

-_ <Bstin v. Estin, supra, 334 U. S., at 548. It can make no |

conceivable difference whether proceedings against an ab-

_ sent defendant are instituted’ by an adverse claimant, as in

Bank of Jasper** and the cases at bar ;, by a: stakeholder, as

- the court below thought was the case in Dunlevy; or by:

the debtor, as in Estin and Vanderbilt. In any such case © |

. _ the proceeding is instituted by a party Who is either hostile

or indifferent to the absent party’s rights and would not

be likely to consult him in choosing a forffh.

The court below sought to distinguish Bank of Jasper v.

First National Bank, 258 U. S. 112, on the ground that ~

there a negotiable instrument was involved.~The-reading of —-

- *The opinion of the court below also appears to suggest that the -

Dunlevy decision’ rested on state grounds [App. A, p. 6]. How- .

ever, the Dunlevy opinion indicates beyond ail question ‘that the

reference to state, law’ went to an altogether different problem, 1.¢.,

whether the Pennsylvania court in the garnishment-interpleader —

proceedings had jurisdiction over the person of -Mrs. Dunlevy- by

/ virtue of the fact that she had been personally served in a prior

action by which the garnishors had reduced their original clai

against her to judgment. , This Court rejected the ¢laim of ps

jurisdiction because, as here, it was not supported ‘by the applicable ~

‘state law. The reference to-state law thus had nothing to do with

‘this Court’s rejection of the claim of jurisdiction based on property,

‘which is in issue on these appeals.

**The Bank of Jasper case seems to us identical with the case _

t bar. There, one Corbett, and others similarly situated, had .

qbrought actions in Florida against the Bank of Jasper and three

Georgia corporations. Process was served upon the Bank of Jasper

- in Florida but the three Georgia corporations could not be found’ .

within: the state and hence were served by publication only. ‘Corbett

alleged that he had been fraudulenfly induced by two of ‘the

Georgia corporations, Rome Company and American’ Company, to

purchase shares of their worthless. stock: that they had deposited

the proceeds: in the Bank of Jasper, which had issued negotiable

. negotiated by the two Georgia corporations to the third Georgia .-

of Laws, p. 110, note 42. This Court noted the negotiable .

Epc at

the decision is clearly erroneous. See Stumberg, Conflict

character of the obligation involved in Bank of Jasper only -

to indicate why the plaintiff-claimant: had not attempted to

assert the absent claimant’s rights in the-manner permitted

by such cases as Harris.v. Balk and Pennington v. Fourth

°National Bank, supra. In Bank of Jasper, the plaintiff |

could not frame his case in terms of an assertion of the

' absent claimant’s rights because he did not have possession —

certificates of deposit therefor; and that the | certificates had been

- corporation, the First National Bank. The complaint prayed that

the proceeds of the stock sales, which had been deposited in the

Bank of Jasper, “be impressed with a trust in favor of the com-

plainant ; that the First National Bank ‘[the holder of ‘the certificates

of deposit] ~be declared not to have any interest therein ; that the

certificate of deposit

stock, be declared void; [and] that the Jasper bank be

apemsestrained from‘ making any payment to the First National Bank out

- » the indebtedness in Florida-was not its property. Had the: indebted-

of the proceeds... . .” 258 U. S., at 115-116. The Florida

court rejected the contention of the First. National Bank, made upon

special appearance, that the substituted service of process upon it

was invalid, and entered judgment in favor of Corbett as: prayed in

the complaint. ore ares een oe

- Thereafter, the First National Bank brought suit on the certifi-

cates of deposit against the Bank of Jasper in a federal court, con-.

ténding that the Florida judgment was invalid for lack of juiisdic-

tion over its person or property. This Court, in an opinion written

by Mr. Justice Brandeis, held that the indebtedness of the Bank of

Jasper to the First National Bank could not be considered property

within the state for purposes of Supporting jurisdiction to determine

the rights of the First National Bank. for the. obvious reason that |

Orbett, the claimant, had: asked ‘the Florida court to determine that

ness “rested in open account,” the court commented, it

= State of Florida. In ar appropriate proceeding it might have

been reached: to satisfy aalaim against its owner. Penninaton .

_ y, Fourth National Bank, 243 U. S. 269. But the suits in the

“state court were not proceedings of that character. Jn them

the complainant asserted that, by reasoncof the fraud alleged, -

‘ the Jasper bank was indebted not to any of tts cores pondents,

but to the complainant.” 258 U. §., at 119 (emphasis supplied).

and the contract’ to purchase the.

would have been property of the creditor: within the

. of the negotiable instrument, a prerequisite to recovery

' under the applicable common law. Here, appellees cannot _

_ fram their case. in terms of an ssertion of the absent

_. claimant’s rights because, under the applicable state law, |

‘assertion of his rights ‘would. require acceptance of his

obligation as a trustee to use the amounts involved for

the purposes set forth in the: trust agreements: See, ¢.g.,

The First National Bank v. Reed, 198 Cal. 252, 244 Pac.

"368; \Liberty. Bank v. Nonnenmann, 96 Cal. App. 478, 274

_ Pac. ' 568; Patterson v. Crowell, 15 €al. ~App. 105, 113

Pac. 700. . Since appellees are not qualified to- act as .

trustees and in any event do not seek to exercise a trus-

tee’s rights, they do not and cannot frame their’ case in -

terms of an assertion of the rights of the absent party.

They dernand, and must sane, a purely personal judg-

ots ment against him.

As noted above, appellees onal obtain j a serseiied judg-

+ ment. in -California against Rosenbaum. The California °

not been a resident of Ca}fornia, tion 417 of the Code

“of Civil Procedure precludes the try of a personal judg--

ment against him.” [App. -A, Pp. 9.] Since the’ Cali-

fornia courts are without power to enter a personal judg-

ment against Rosenbaum, the question of whether there —

-. were sufficient “relevant contacts”. to support personal

Bee jurisdiction under. McGee v. International Life “Ins. Co.,

355. U.S. (No. 50, O.T. 1957), ig. not presented. 3

The California ‘Supreme Court, however, holds that if |

an absent defendant has “contacts” with the state with re- .

spect to a contract right against a local debtor, : the state -

has power, without - personal jurisdiction. over such de-

fendant, to cancel, or invalidate his coritract right. But

under .the decisions of. this Court, where there is no

personal jurisdiction over a defendant-creditor, a state

‘Supreme Court held at&‘since cn is-not and has

ar court: is without power to set ithe his rights i in intangibles.

To hold that such power can be predicated upon “contacts”

- 1S inconsistent with the Dunlevy, Bank of J asper, Estin —

and Vanderbilt cases. In each of those cases, this. Court . .

struck. down the jurisdiction. of ‘state courts despite the

’ existence of far more “relevant” contacts with the ab- —

sent defendant than-exist htre. In the Dunlevy case, the.

insurance policy was issued to the insured in Pennsylvania,

the state which sought to exercise jurisdiction. The. in-

sured, _in Pennsylvania, assigned: his rights in the policy

to the absent defendant—Mrs. Dunlevy—at a time when

she was a resident of Pennsylvania. See Dunlevy v. New

York Life Ins.:Co., 204 Fed. 670, 671 (N.D. Cal.). In the

Bank. of Jasper case, the intangible was closely identified .

with Florida, the state whose ‘courts had attempted to base.

jurisdiction upon it. The obligation. of the Bank of Jasper,

_. the-debtor over whom the. court. had personal jurisdiction,

' was: incurred in Florida and the rights which the com-

; plainant: was seeking to- enforce arose out. of a fraud al-

" - legedly ‘committed in that state by two of. the. absent

“parties, ‘The rights of the, third absent party depended

“upon a certificate-of deposit issued in Florida by the Bank

_ of Jasper. In the Estin and Vanderbilt cases, the “debtor”

- . was domiciled in the forum bao. and that state therefore

. had power to dissolve the: very relationship on which the

obligation was founded. In all four cases, however, this

Court held that the attempted exercise of jurisdiction was

'. ‘improper. The conclusion thus is clear that the decision of

»,the court below is in. conflict, both in result and in principle,

with decisions of this Court that have been reaffirmed and

applied ‘as recently as the 1956 Term. -

Under .the. decisions of. this Court, ‘ic Due Process

Clause. of. the Fourteénth Amendment precludes a state

court from adjudgingthat a defendant, over whom the

state ‘court has not obtained personal jurisdiction, hasgno |

interest in an intangible. “-The court below has held that

the courts of California ‘can constitutionally do the very

- thing that this Court has held ‘that they ‘cannot constitu-

tionally do—it has held that without shaving” personal

jurisdiction over Rosenbaum, the California courts have

jurisdiction to adjudge invalid a trust agreement between

- Rosenbaum and_these appellants and to order these ap-

‘pellants to pay to > appellees the sums yey agreed to pay to

% Rosenbaum.

Conclusion. - Re roe a iy

These appeals present a substantial federal question,

The Dunlevy, Bank of Jasper, Estin and Vanderbilt eases

have not been overruled and are by no means obsolete. Yet

the court below, after suggesting some distinctions that

do not exist and others that are immaterial, intimated that

the Dunleyy case’ was no longer controlling, blandly as- .

serting that it was “not required to forecast the over-

ruling of the Dunlevy casé.” [App. A, p. 12.] We be-

. lieve that the California Supreme Court erred in failing

to acknowledge the binding effect of this. Court’s de-

cisions.

. The cdnstitutional question presented herein is obvi-

ously of general importance, because -the principles estab-

lished by the Dunlevy, Bank of Jasper, Estin and Vander-

bilt cases now form the basis of statutes and case law

relating to jurisdiction in many states: In addition,

__an authoritative decision by this Court on these ap-

. peals.is of particular importance to these appellants.

- - The decision below holds that. California has~ power to

render judgments requiring appellants to pay money to

“appellees rather than to Rosenbaum, as trustee. The de-

- cision is. not, however, binding on the courts of New

- —23—

York, , in which Résenbaum. has already commenced an

action against these appellants. The New York courts “

can be expected to adhere to the principles of Dunlevy, —

. .

those cases to. treat any ‘California decision as a nullity.

The result then can be that appellants will be required to

pay twice—once to appellees as may be required by a

California Audgment, and once to Rosenbaum as may: be

.s required by a New York judgment.

The decision below is final as to aypellants, and the issue

presented by these appeals | should be decided now by a

Court “whose decisions are binding on the courts of both

New York and California.

_ Respectfully submitted,

Homer I. MITCHELL,

Cuartes G. BAKALY, JR.,

Attorneys for Columbia Broadcasting System, A

CBS.Television Film Sales, Inc., Radio Corpo-

ration of America, National Broadcasting

Company, Inc., California National Produc-

tions, Inc., and Capitol Records, Inc.

~ O’MELVENyY -& Myers,

Of Counsel. .

: ALFRED I: RoTHMAN,

Attorney for Loew's Incorporated, Republic Pro-

ductions, Inc., Republic Pictures C rporation, —

and Hollywood Television Service,

tmaim a ea.

_ Of Counsel. ey ee ee oe a

: | AVERILL, C.. Pasarow,

; Attorney for Decca Records, Inc. and Coral Ree.

AN - ords, Inc.

Dated January 29, 1958.

Bank of Jasper, Estin and: Vanderbilt, and in reliance upon -

APPENDIX A. |

vo Opinion of the Supreme Court of the _— of

3 | California. —

In the Supreme Court of the State of California, in

Bank. 3

William (Bill) Atkinson, Jack Barsby, Alfred E.. Brain,

‘Clarence (Pete) Carpenter, Russell A. Cheever, Harriet

‘Crawford, individually. and on behalf .of all other instru-

. mental musicians similarly situated, Petitiofiers, vs. The

Superior Court of the State of California; in and for the

County of Los Angeles, ‘Respondent. American Federa-

tion of Musicians, Columbia Broadcasting System, et al.,

and Loews Incorporated, Republic Pi tures, et al., Real

Parties in Interest. L. A. 24629.

John H. Anderson, Jr., Burnett F. Atkinson,’ Robert

Bain, Edwin Vance Beach, Roland E. Bundock, Law-

rence B. Bunker, -George Callender, individually and on

behalf of all other instrumental musicians similarly situ-

ated, Petitioners, vs. The Superior Court of. the State

of California, in and for the County of. Los Angeles;

Respondent. American Federation of Musicians, Colum-

bia Broadcasting System; et al., and. Loews Incorporated,

Republic Pictures, et ie Real Parties in Interest. L. A.

24630.

Filed: ' Nov. 5, 1957.

Separate class actions were brought by two groups of _

musicians attacking the validity of collective bargaining _

contracts between their employers and the American Fed-

eration of Musicians and certain trust’ agreements related.

‘thereto. One -action is on behalf of the employees of

various motion picture companies and the other is on be-

half o* the employees of various phonograph record com-

ntsiaain

panies. The gist of plaintiffs’ complaints is that in viola-

tion of its.duty as their collective bargaining agent and

“in fraud of their rights. the Federation contracted with

the employers that certain royalty payments and pay-.

ments for reuse of motion pictures on television should

be paid to a trustee for specified trust ene ‘instead

SOR ta the employees.

( bees rag allege that these, payments constitute wages

\. earned by the employees. and that their diversion to the

‘trust is violative of their rights; that the purpose of the

trust is to contribute to :the public knowledge and ap-

preciation of music throughout the United States and -

Canada, and the trustee is authorized and directed to

e expend the trust funds in presenting . personal perform-

ances by instrumental musicians to which the public is |

/ admitted without charge; that the trust arrangement

diverts wages earned. by California . employees, members .°

of Local No. 47, for the benefit of Federation members

elsewhere without corresponding benefit to plaintiffs from.

the operation of similar arrangements made elsewhere;

that the employers are willing to make the payments to —

their employees, but for their agreements with. the Feder-—

¢ ation to make the payments to the trustee; and that the

national executive officers of the Federation insisted -on

this arrangement. for the selfish purpose of perpetuating

themselves inf office and of: maintaining their hold and

control over the affairs of the Federation and used the

‘trust fund to win the support of pfficials of the Federa-

tion’ s locals and member musicians throughout the United

States and Canada, who vastly outnumber plaintiffs and_

are not employed by the employers here involved.

In each action, the Federation, the trustee, and the

respective employers are named ‘as defendants. Plain-

tiffs seek a. declaration of the invalidity of the collective

bargaining agreement and their right to the payments. -

either as beneficiaries-of—a constructive trust or on the

ground that the payments constitute wages withheld in

violation of sections 222 and 224 of the Labor Code. They’.

also seek damages against the Federation for breach of

its duty to them. . At the commencement of the actions

they moved for the appointment of a receiver to collect

the payments and preliminary injunctions to prevent the

-employers from making the payments to the: trustee. The

employers have been personally served with process in _

this state, and personal jurisdiction has been obtained over —

the Federation. The trustee: was served pursuant to

court order by delivery of summonses and complaints and

motion papers within the State of New York, but he has

not appeared.

The trial court held that insofar as plaintiffs sought to

. intercept the delivery of payments to the trustee ‘by the

- appointment of a receiver and temporary injunctions, the

trustee was'.an indispensable party. and that the court

had no jurisdiction to grant plaintiffs’ motions for pro-

visional relief without personal jurisdiction over the

‘trustee. It was careful to point out that its ruling was

| based solely on lack of jurisdiction and stated that “if

the’. court had jurisdiction to do'so, the exercise of a

_ sound diseretion would probably require the granting of

. a preliminary injunction and saa the appointment of |

a receiver a j

Some of the plaintiffs in each of the actions then filed

’ their petitions for writs of mandate in the District Court .

of Appeal, Second Appellate District. _The Second Divi- .

sion of that court issued alternative writs of mandate and

after a hearing filed its decision in each case “com-

manding respondent superior court to assume and exer- —

cise jurisdiction over petitioners’ application for pre-

liminary injunction and appointment ‘of receiver as prayed

herein.” ~Petitions for hearing by: the real parties in in-

terest, the defendant employers and Federation, were then

granted by this court: . *

The writ of mandate is an appropriate remedy unless

an. appeal from each order wiki the motion gor a_

preliminary injunction constitutes “a_ plain, speedy, and

adequate remedy.” (Code Civ. Proc., § 1086 ; ’ Financial

~Qndem.*Co. v. Superior Court, -45 Cal. 2d. 395, 399.)

Petitioners alleged in their petitions before the District

Court that the remedy by appeal was not adequate be-

cause of the necessity of prompt action to prevent further

movement of funds out of the jurisdiction of the superior

court. Since no purpose but delay would be served at .

this time by reviewing the District Court’s decision that

-the remedy by appeal was inadequate, we accept it for.

the purposes of these proceedings. (Bowles v. Superior

Court, 44 Cal. 2d 574, 582.) |

We have concluded that personal service -upon the

- trustee in New York was sufficient to give the court juris-

diction to adjudicate his right to receive payments under

the contracts here involved. Code ‘of Civil Procedure —

section 412 provides: “Where the person on whom ser'vice

is to be made resides out of the State . . . and it

. . .. appears .... . that it-is an action which re-

_ lates to or the subject of which.is real or personal prop-

erty in this State, in which such person defendant

‘has or. claims a lien or interest, actual or contingent,.

therein, or in which. the’ relief demanded consist wholly

or in part in excluding. such person’. . . from any

interest. therein, such court, or judge, may make an order

that ae service be made by the: publication of the sum-

mons.” Section 413 provides that personal service outside

‘the state is equivalent to publication.. Plaintiffs claim

that the émployers’ obligation to make the. paymc nts |

volved is one owing to them. instead of to the trustee.

That obligation is a chose ‘in action and is therefore per-

sonal property within the meaning of the. statutory, pro-

visions. . (Code Civ. Proc., § 17 (3).) Being an in-

tangible, it has .no situs in fact. “An intangible, unlike

_ real or tangible personal Property, has. no physical-eharae- ae

_ teristics. that. would serve asa basis for assigning it to

2 particular logality. The location assigned to it depends

on what action is to be taken with reference to it.”

(Estate of ‘Waits, 23 Cal. 2d 676, 680.) The question -

presented, therefore, is whether the chose’ in action in —

“question may be treated as being within this state within

. the meaning of section 412: for purposes of exercising in

rem or quasi in rem jurisdiction over it in these actions.

Plaintiffs rely on cases holding that having jurisdiction

over the obligor, the state has power to enforce the obli-

gation and cut off the right, if any, of a nonresident

- Claimant thereto without personal jurisdiction over the

. Nonresident. Garnishment proceedings (Harris-v. Balk,

198 U. S. 215) and escheat. proceedings (Standard Oil

Co. v. New Jersey, 341 U. S. 428; Security Bank v.

’ California, 263 U. S. 282) are examples of the exer-

cise of such power: Defendants contend, however, that.

in the case of ordinary choses in action such power is

limited to situations in which the local claimant admits

the validity of the local debtor’s obligation to the non-

resident and seeks to reach the interest he’ admits is the

property of the’ nonresident. They point out that in the

present case: plaintiffs are not seeking to reach property

: admittedly belonging to the trustee but are claiming that

the obligation is owed only to them. Defendants rely

on cases holding that the debtor cannot treat his: own

obligation as eproperty ‘where he-is, when his purpose .

is to.terminaté a nonresident’s claim against him (Van-

derbilt v. Vanderbilt, 77 Sup. Ct. 1360; Estin v. Estin,

334 U. S. 541); and they contend that the rule is the

same whcn. the debtor ‘seeks to interplead both a local -

and a nonresident ‘claimant. (8. -%. Life Ins. ~~ s::.

~--Danlevy;-241. U. ‘Ss. 518.) In their view it is immaterial |

in an action to adjudicate conflicting clainys--to—an_ obli-—

_ gation, whether the action is commenced by the obligor,

where only one of the claimants can be served, or is

commenced by one of the claimants, where he can secure

personal jurisdiction over the: obligor but not over the —

rival claimant.

We find no controlling precedent of the United States .

Supreme: Court. It is true that in the Dunle- y case credi-

tors of one. of the claimants to the insurance proceeds

had garnished Mrs. Dunlevy’s interest before the insur-

ance company sought to interplead the local claimants

with Mrs. Dunlevy who was absent, but the Court was:

careful to point out that the interpleader action | “initiated

by the company was an altogether different matter” from

the garnishment proceedings and that under the applicable

state law a judgment exonerating the garnishee was not

binding on the absent debtor whosé claim against the

garnishee the local creditors had unsuccessfully attempted

to reach. (241 U. S. 518, 520-521.) Defendants rely

on language in Bank of Jasper v. First National Bank.

258.U. S. 112, 118-119, suggesting a distinction for j juris-

dictional purposes between an action to reach a debt owed

an absent defendant and an action seeking to establish

a —7—

that the debt is owed directly to the plaintiff instead’ of

to the absent claimant, In the Bank of. Jasper case, how-

ever, the obligation had been embodied in a negotiable

certificate of deposit that + ‘was hot within the jurisdiction’

of the court, and the Supreme ‘Court summarized its hold-

ing by stating that “As neither the certificates of deposit _

‘nor the: holder thereof were. within the State of Florida,

its courts could not—in the absence ‘of consent—acquire

+ jurisdiction to determine the liability of maker to holder.”

Accordingly, that-case is not controlling here where the

_ obligation ‘has not been embodied in a negotiable docu-

Decisions of other courts involving conflicting claims .

to choses in action, where the action has been commenced .

by one claimant who has secured personal jurisdiction |

over the debtor but not over the absent claimant, are in

conflict as to whether there is jurisdiction to adjudicate.

the absent claimant’s rights. (See, e.g., sustaining. or

indicating: jurisdiction: Cameron v. Penn. .Mut.. Life

Ins. Co. [N. J. Eq.], 161 Atl. 55, 60; 173 Atl. 344, 346;

Ely v. Hartford Life Ins. Co, [Ky.], 110 S. W. 265,

268; State-¥ Mueller [Mo. App.], 90 S. W. 2d 171,

~ 174-176; Omaha Nat. Bank v. Federal Reserve Bank,

26 Fed. 2d 884, 887-889; Feuchtwanger v. Central Han-

over Bank & Trust Co: [N. Y.], 43-N. E. 2d 434; 435;

First Nat. Bank v. Bank of Horatio [Ark.], 255 S. W.

881, 882; Taylor v. Security Mut. Life: Ins. Co., 77

N. Y. S. 1012, 1013: Oishei v. Pennsylvania. R. Co.,

102 N. Y. S. 368, .371, ‘aff'd, 85 N.. E. (1113; Morgan

y, Mutual Benefit Life Ins. Co. [N. Y.],-82.N. E. 438,

441; Kumor v. Scottish Union & National Ins. Co.

-[Wyo.]. -33 Pac. 2d 916, 920-922; Bush v. Missouri

State Life Ins. Co. [Okla. ], 207 Pac. 317, 319; Mutual

—8—

Home Assn. v. Zwatchka [Tex. Civ. App.], 297 S. W. -

317, 318; Perry v. Young.[Tenn.], 182*S. W. 577, 578;

.Sherman Nat. Bank v. Shubert Theatrical Co., 238 Fed.

225, 229; Morgan v. Mutual etc. Ins. Co., 16 Cal. App.

85, 90-93. Denying or indicating no jurisdiction: Mahr

et al. v. N. U. F. Ins: Soc., 127 N. Y. 452, 460-462;

Kelly v. Norwich. Union Fire Ins. Co. [Iowa], 47 N. W.. .

986, 987; Royal Neighbors of America v. Fletcher -

{Okla.], 227 Pac. 426, 429; Cross v. Armstrong [Ohio].

10 N. E, 160, 164-166; Washington Life Ins. Co. v.

Gooding [Tex. Civ. App.}, 49 S. W. 123, 127; Redzina -

v. Provident Inst. for Savings [N. J.], 125 Atl. 133,

136: McBride vy. Garland-{N. J. Eq], 104 Atl. .435,

‘436; Austin v. Royal League. TIIl.], 147 N. E. 106, 109;

Schoenholz v. New York Life Ins. Co.,'188 N: Y. S.

596; Eisner v. Williams [Mich.], 298 N. W. 507, 509-

510; Stockbridge v. Phoenix Mut. Life Ins. Co.. 193

Fed. 558, 560.)

In the absence of a settled rule governing situation .

| before us,.and in light of the fact that an intangible may _

be subjected to the. jurisdiction of the court without per-

sonal jurisdiction over all of the parties involved for

sorne’ purposes but not for others, we conclude that the |

solution must be sought in the general principles | govern-

ing jurisdiction over persons and property rather than

in an attempt to assign a fictional situs to intangibles.

It is significant that with respect to jurisdiction to tax

_ intangibles (Curry y. McCanless, 307 U. S. 357, 373-

374), jurisdiction over foreign corporations (Internat.

Shoe Co. v. Washington, 326:U. S. 310, 316; Perkins

v.eBenguet Mining Co., 342 U. S. 437, 445), and juris-

diction to adjudicate trust obligations. (Mullane v. Cen-

tral Hanover Bank and Trust Co., 339 U.'S. 306, 311-

., 313), emphasis is no longer placed on actual or physical

- presence but ori the bearing that local’ contracts have to

the question of overall fair play and substanitial justice.

A similar change in emphasis has been taking place

with respect to personal jurisdiction over: individuals.

(Cf., Pennoyer v. Neff, 95 U. S. 714; with Milliken v.

_ Meyer, 311 U. S. 457, 462-463; Hess v. Pawloski, 274 —

U.S. 352; Allen v. Superior Court, 41 Cal. 2d 306, 310- ..

313; Nelson v. Miller [Ill.], 143 N. E. 2d 673: see,

Smyth v. Twin State Improvement Corp. [Vt.], 80 Atl.

2d 664.) “But ‘now that the capias ad respondendum has

given way to personal service of summons or other form

of notice, due process requires only that in order to sub-

ject a defendant to a judgment in personam, if he be. not

present within the territory of the forum, he have cer-

tain minimum: contacts with it such that the mainteffance:

of the suit does not offend ‘traditional notions of fair

play and substantial justice.’” (Internat. Shoe Co. v:

Washington, supra, 326 U. S. 310, 316.)

In the present case, since the _trustee is not and has.

not been a resident of California, “Section 417 of the Code

of Civil Procedure precludes the entry. of a personal judg-

ment against him, and it is therefore unnecessary to de-

_ termine whether. his activities as trustee have sufficient ~

connection with. this state constitutionally to justify an

‘assumption of.-personal jurisdiction without service of.

- process here. The relevant contacts with this state are

significant, however, in deciding - whether due process.

permits exercising a more limited or quasi in rem juris-

diction. ‘\to determine his and plaintiffs’ interests ‘in the.

‘ intangibles. in question.

We find no relevance in the distinction defendants seek

to make. between jurisdiction to take over :a. nonresident’s

10 oa

claim to ‘a chose in. action -admittedly his and jurisdic-

tion to establish that it was never his. In both situa-

tions the nonresident can protect his interest in the prop-

erty only by submitting to the jurisdiction of the court. ;

It is true that in the former situation he. must litigate

_ a controversy solely between himself and his creditor. un-

~ related to pre-existing rights fh. the obligation garnished,

whereas in the. latter. situation pre-existing conflicting :

rights.to the obligation. itself are involved; but this dis-

tinction alone has no bearing on the fairness ‘of making

_ him‘ appear. It has been rejected in a case involying

both. real and personal property including intangibles

(Loaiza’ v. Superior Court, 85 Cal. 11, 34-35),. and does

not exist with respect to controversies over corporate

stock. (Jellenik v. Huron Copper Mining Co., 77 U.S.

1, 12-13; Wait v. Kern River Mining etc. Co., 157 Cal.

16, 21; Amparo Miriing Co..v. Fidelity’ Trust Co. [N. J.], .

73 Atl. 249, 250-251; Michigan Trust Co. v. Probasco

[Ind. App.], 63 N. E. 255, 257. ) It-is true that for

some purposes the state of incorporation may be. pecu-"

liarly appropriate for the purpose of litigating conflicting ~

claims ‘to’ corporate: stock, but, if so, it is because of .

relevant contacts there; if such contacts exist elsewhere,

jurisdiction also follows. (Wait vs Kern River Mining

etc: Co., supra, 157 Cal. 16, 21.) Similarly, in the case -

of other intangibles, jurisdiction must be determined in

the light of the totality of contacts with the state in-

| volved. ‘Indeed, many of the apparently conflicting deci-

sions on- the question before us could be reconciled on—

their facts, if not their language, on this basis. (Cf.;°

e.g., Omaha Nat. Bank v. Federal Reserve Bank, .26.

' Fed. 2d 884, 887-889; Feuchtwanger v. Central Hanover

- Bank & Trust Co. [N: Y,], 43 N. E. 2d 434, 435; First.

Nat. Bank v. Bank of Horatio [Ark.]; 255 S. W. 881,

oe 3

—ll—

882, eee v. Mutual Benefit Life Ins. Co. [N. Yd),

82 N. E. 438, 440-441; Kumor v. Scottish Union &: Na-

tional Ins. Co. [Wyo.], 33 Pac. 2d 916, 920-922; Perry

‘v. Young [Tenn.], 182.S. W. 577,.578; with Mahr et al.

v. N. U. F. Ins. Soc., 127 N. Y. 452, 460-462; Cross v. .

Armstrong [Ohio], 10 N. E.. 160, 164; Eisner v. Wil-

. liams [Mich:], 298 N. .W. 507, 509-510.) -

The present case is not one in which an obligor. has _

invoked the jurisdiction of a.court remote from the.

- obligee solely for the purpose of terminating his obliga- .

tion (see, Estin v. Estin, supra; Vanderbilt v. Vander- =

bilt, supra) or. sought to-compel conflicting claimants to

adjudicate their rights in a forum of his. own choice.

(See, N. Y. Life Ins. Co. v. Dunlevy, supra.) “The obli-

gation plaintiffs seek to enforce grows out of their em-

ployment by defendants here. The payments involved —

are alleged to be consideration for’ work performed i in this

state. The. Federation deferidant is before the court.

Under these’ circumstances, ‘fairness to plaintiffs demands. —

“that they. be .able to reach thé fruits of their labors be-

fore they are removed from the state. Moreover, fair-_

ness to the defendants who: are persofially before the

‘ court also demands that the. conflicting claims of the

trustee be subject-to fihal adjudication. Even if we were

to hold that his absence prevents the granting of the pro-

visional remedies here sought, plaintiffs would not be

foreclosed thereby from asserting that. payment to him

did not discharge the employers’ obligation to them and

that the Federation was independently liable for damages

for breach of its fiduciary duty. The evil of exposing the -

‘obligor to actions to enforce the same obligation in two

jurisdictions with the attendant risk of ‘double liability

. would not be obviated. It was just such double liability —

that was sustained in the Dunlevy case.and gave impetus

fo the passage of federal interpleader legislation, (See,

Chafee, Interstate Interpleader, 33 Yale L. J. 685, 711.)

It is doubtful whether today the United States Supreme

Court would deny to a state court. the interstate inter-

pleader jurisdiction: that federal courts ‘may exercise. A

remedy that a federal court may provide without vio-

lating due process of law: does not become unfair or

unjust because it is sought in a state court instead. To -

sustain jurisdiction in these cases, however, we are not

required to forecast the overruling of the Dunlevy , case

and to act on ‘that basis. For the reasons ‘stated above,

_ this case is ‘clearly distinguishable from the Dunlevy case,

and the multiple. contacts with this state. fully’ sustain the

jurisdiction of: the superior court to exercise quasi in rem

jurisdiction over the intangibles in question. Lf .

‘Let the writ of mandate issue in oa case commanding

respondent superior court to assume - nd exercise juris

diction over petitioners’ application for a préliminary in-

junction and‘the appointment of a. receiver as prayed

herein. | | by 4 ee,

: Traynor, J.»

' We concur:

Gipson, C. J.

SHENK, J. -

CarTER, J. |

SCHAUER, s.

SPENCE, J.

Mc Cos, ce

| 1d

| _ APPENDIX B.

‘Memorandum for Counsel.

In the Superior Court of the State of California, in.

- and for the County of Los Angeles.

: ~ John H. Anderson, Jr., et al., Plaintiffs, vs. Asiterican

Federation of Musicians of The United States and Canada,

an unincorporated association and. labor union, et al:,

Defendants. No. 669,990. |

William aint) Atkinson, et al., Plaintiffs, ‘VS. eo

Federation off Musicians of The. United. States and Can-

ada, an unincorporated association and Tabor unions et al.,

Defendants. No. 670,348. |

A brief “memorandum will be ‘sufficient to indicate to

- counsel the basis ofthe court’s determination in each case.

While there are a number of causes of action in each

complaint, including claims of plaintiffs for damages as

against the defendant Fedération, the matters presently

before the court with respect to the applications for pre-

- liminary injunctions and for appointment of a receiver fall

‘within a narrower compass. : The question first to be de-

‘Bi =~ termined is that of jurisdiction and that problem is rooted | _

in.the contention of the plaintiffs that they, or persons |

whom they represent,.are.entitled to receive moneys pay-

able by various defendants in the phonograph-record. or —

television-film fields under ¢ertain agreements. The plain-

tiffs seek to enjoin those defendants from making. pay- -

ments of the moneys so claimed by the plaintiffs to the

trustee of the ‘Music Performance Trust Funds:

The trustee,.Mr. Rosenbaum, although named as a party

defendant in each case, cannot be personally served with

process in this State, but is to be found in the State of

New York. . In view of that fact, does this court have ,:

-: —14—

jurisdiction to grant an injunction or appoint a receiver

as sought by the plaintiffs? . In seeking an answer to |

that question, some. guidance is found in an article by

Fletcher B- Andrews in 49 Yale Law Journal at page 241

(reprinted in part in Selected Readings on Conflict of

Laws at.page 306), the article being entitled “Situs of

Intangibles in Suits Against Non- resident Claimants”.

Certain distinctions are to ¢ noted. The cases at bar

do not involve the interpleader problem (New ;York Life

Insurance Company v. Dunlevy, 241 U. S. 518). More-

over, there’is not presented’a case in which a plaintiff seeks .

to have applied, in satisfaction of an obligation owed to:.

him by a non-resident, property of the non- -resident in

the form of a debt owed the latter by a debtor upon whom

the plaintiff is able{to obtain personal service of process

_ (Harris v. Balk, 198 U. S. 215). The problem is, rather,.

that of conflicting claims to a debt owed or an intangible

obligation for the payment of ~money- undertaken by a

third person. While the authorities are not consistent

and while there has been no direct determination of the

question by the Supreme Court of the United States, the

‘sound. view .under the facts here presented appears to be

that there is no jurisdiction to resolye the conflieting

claims unless jurisdiction. m personam can be obtained |

over each claimant. : . soe

- If the court had. jurisdiction to eo so, the exercise of

"a sound discretion would probably requife the. granting

ofa preliminary injunction and, perhaps, the appointment .

of aereceiver, at least with respect to the 10 percent and

21 percent payments under schedule “A” of ‘the labor

agreement in the Anderson case and with respect to the

re-use payments in the Atkinson case. However, as set

forth above, such jurisdiction does not exist. “~~ |

“er

Because the trustee, who is an indispensable: party in

| the phase of each. case under examination, is not subject

to the process of the court, each application for a pre-

liminary injunction and for a receiver will be denied

solely upon the ground of lack.of jurisdiction in the court.

Counsel: for the defendant Federation :are. requested to

prepare a formal order in each case. The. temporary

restraining orders will not be dissolved until the court

' signs the formal orders to be submitted, or, with respect

to the temporary restraining order in the, Atkinson case,

unless it shall expire prior thereto by its own terms.

‘Dated this 24th day of January, 1957.

ae Joun J. Forp —

Judge ‘of the Superior Court

APPENDIX C.

Cal. Stat. 1951, ch. 1737, §48, West’s ‘Ann. Cal. Codes,

Code Civ. Proc., §412:

“Where the person on whom ue: is to be made

resides out of the State; or has departed from the State; |

or can not, after due diligence, be found within the State;

or conceals himself to avoid the service of summons; or

is a corporation having no. officer or other person upon

_ whom summons may be served, who, after due diligence,

can be found within the State, and the fact appears by”

- affidavit to the satisfaction of the court, or a judge thereof ;

and it also appears by such affidavit, or ‘by the verified

complaint on file, that a cause of action exists against

- the defendant in respect to whom the’ service is to be

made, or that ‘he is a. Necessary or proper party to the

action; or when it appears by such affidavit or by the

complaint on file, that it is an action which relates to or

the subject of .which is real or personal property in this

State, in which such person defendant or corporation de-

*_Aendant: has or claims a lien or interest, actual or con- ’

tingent, therein, or in which the relief demanded consist

- wholly or in part in excluding such person or corpora-

tion from any interest therein, such court, or judge, may

make an order that oe service be made by the 5 ead

tionsof the summons.’ ‘ |

Cal. Stat. 1951, ch. 43, §1, West’s Ann. Cal. Codes,

| Code- Civ. Proc., §413:

“The order must direct the publication to be made in

a newspaper, to be named and designated as most likely to

* give notice tothe person to be served, and for such length

of time as may be deemed reasonable, at least once each

calendar ‘week; but publication against: a defendant re-

lion.

siding out of the State, or absent therefrom, must be.

i pursuant to Section 6065 of the Government Code, ex-

cept in proceedings instituted pursuant to the provisions.

of Chapter 4, Title 3, Part 3, of this code: In case of

publication, where™the residence of a nonresident or ab- _

sent defendant’ is known, the court, judge, or justice,

must direct a copy of the summons and complaint to be

forthwith deposited in the post office, directed to the per-

son to be served, at his place of residence. When pub-

lication is ordered, personal service-of a copy of the sum-

-mons and complaint out of the State is equivalent ‘to

publication and deposit in the post office. Service -is

complete upon the making of such personal servicé or .

at the expiration of the time prescribed by the order for.

_ publication, w hichever event shall first occur. |

“As used in this section ‘post..office’ includes mail box,

stb-post ‘office, substation- and mail chute or other like

facility. regularly maintained by the Government of the:

United States.”

cu Stat. 1951, ch. 935, §1, West's Ann. Cal. Codes,

Code Civ. Proc., §417:

“Where jurisdiction is acquired over a person: who is

outside of this State by publication of simmons in accord-

ance with Sections 412 and ‘413, the court shall have the

power to render a personal judgment against such person.

only.if he’ was personally served with a copy of the sum-

mons and complaint, and was a resident of this State at

the time of the commencement of the action or at the

time of service.”

os ae :

APPENDIX D.

Writs of Mandate.

In the Supreme Court of the State of California.~

William (Bill) Atkinson, Jack Barsby, Alfred E. Brain,

' Clarence (Pete) Carpenter, Russell A. Cheever, Harriet

Crawford, individually and on. behalf of all other. instru-

mental musicians similarly situated, Petitioners, vs. The

Superior Court of the State of California, in and for

the County of Los Angeles, Respondent. American Fed-

eration of Musicians, Columbia Broadcasting System,

et al., and Loews Incorporated, Republic Pictures, et al., -

Real Parties in Interest. L. A. 24629,

WRIT OF MANDATE

The People of the State of California Send Greetings. .

to the Respondent, the Superior Court of the State of -

California, in and for the County of Los Angeles:

Whereas, the Supreme Court of the State of Cali-

fornia, in ‘bank, on November 5, 1957, unanimously

ordered a writ of mandate to issue in the above entitled

proceeding as prayed for in the petition for writ of

mandate on file herein; now, therefore,

You are heréby commanded to assume and exercise

jurisdiction over plaintiffs’ (petitioners’) application for °

preliminary injunction and the appointment of a receiver

in that certain action in the Superior Court of the State

of California, in and for the County of Los Angeles,

numbered 670348, entitled William ( Bill) Atkinson, -et al.;

‘Plaintiffs, v. American Federation. of Musicians of the

United States and Canada, etc., et al., Defendants. .

Witness the Honorable Phil S. Gibson, Chief Justice,

and all of. the Associate Justices of the Supreme Court —

of the State of California. |

Attest my hand and the seal of this Court, this 6th

day of December, 1957.

WILLIAM I. SULLIVAN,

Clerk of the’ Supreme Court

By - |

‘Deputy Clerk —

.In the Supreme Court of the State of California.

-” John H. Anderson, Jr., Burnett F. Atkinson, Robert

Bain, Edwin Vance Beach, Roland E. Bundock, Lawrence

B. Bunker, George Callender, individually and. on behalf —

of all other instrumental musicians similarly situated,

~ Petitioners, vs. The Superior Court of the State of Cali-

fornia, in and for the County of Los Angeles, Respon-

dent. American Federation of Musicians, Columbia

Broadcasting: System, et al., and Loew’s Incorporated,

Republic Pictures, et al., Real Parties in Interest. hie A.

24630. Sen 3 oie

| Warr ¢ ‘OF MANDATE

The People of the State. of California Send én

to the Respondent, the Superior Court of the State of

California, in. and for the County of Los Angeles:

Whereas, the Supreme Court of the State of California, |

~ in bank, on November 5, 1957, unanimously ordered a

as prayed for in the petition for writ of mandate on file

herein; now, therefore, i

You are hereby commanded to assume and exercise

jurisdiction over plaintiffs’ (petitioners’ ) application for

preliminary injunction and the appointment of a receiver

in that certain action in the Superior Court of the ‘State

of California, in and for the County of “Los Angeles,

numbered 669990, entitled John H., Anderson, Jr., et al.

Plaintiffs, v. American Federation. of Musicians of the

United States and Canada, etc., et al., Defendants. _

Witness the Horiorable Phil S. Gibson, Chief Justice,

and all of the Associate Justices of the Supreme Court

of the State of California. -

Attest my hand and the ‘nal of this Court, this 6th

day of December, 1957. 3

ae WItuiaM I. Sutivan,

Clerk of the’ ‘Supreme Court

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.