Opinion
No. 7301.
June 12, 1934.
Appeal from the District Court of the United States for the Southern District of California, Central Division.
Suit by the Wake Development Company and others against the Auburn-Fuller Company, in which Maynard McFie was appointed receiver for the defendant company. From an order authorizing the receiver to settle and pay certain claims, E.L. Cord and others, holders of other claims, appeal.
Submission vacated, with directions.
Young Young and Milton K. Young, all of Los Angeles, Cal., for appellant.
Chandler, Wright Ward and John F. Gilbert, all of Los Angeles, Cal., for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
Appellee petitioned the court for leave to compromise five claims for damages for breach of five separate leases of premises occupied by the defendant Auburn-Fuller Company before the appointment of receiver. In pursuance of this application and over the objections of four claimants whose claims had been theretofore allowed, the trial court authorized the settlement and immediate payment of said claims, as follows:
Van Ness Realty Co. ................... $3,670 William Garland et al., Trustees ...... 4,500 Katherine Eddy ........................ 1,250 Olof Johnson .......................... 1,500 Beverly Wilshire Investment Company ... 1,250
He overruled the objections of E.L. Cord, whose claims were $637,200 and had been disallowed, and the objections of Auburn-California Company whose claims had been allowed for $3,116.63; Duesenberg, Inc., whose claims had been allowed for $2,975.72; Don P. Smith whose claims had been allowed for $1,790.85; and Los Angeles Broadcasting Company whose claims had been allowed for $19,207.59. The citation on appeal was directed solely to the receiver and his attorneys. The claimants, whose claims were compromised and ordered paid, were necessary parties to the appeal and in default of service of citation upon them this court cannot proceed with the appeal. Seaboard Nat. Bank v. Rogers Milk Products Co. (C.C.A.) 16 F.2d 271; Bloomingdale v. Watson (C.C.A.) 128 F. 268; Speers Sand Clay Works v. American Trust Co. (C.C.A.) 37 F.2d 572; Jacobs v. George, 150 U.S. 415, 14 S. Ct. 159, 37 L. Ed. 1127; Davis v. Mercantile Trust Co., 152 U.S. 590, 14 S. Ct. 693, 38 L. Ed. 563; Hewitt v. Filbert, 116 U.S. 142, 6 S. Ct. 319, 29 L. Ed. 581.
The submission of this matter on the merits is vacated with directions to the clerk of this court to issue a citation on appeal to the claimants provided application is made therefor within ten days.