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263 F.2d 536

Docket No. 6047.

Lewis v. The Honorable A. Sherman Christenson

Tenth Circuit Court of Appeals

January 19, 1959.

Tenth Circuit Court of Appeals · decided 1959-01-19

2 counsel of record

Key passage — most relied on by later courts

““The petition for default judgment or order requiring responsive pleading filed by the Continental Bank & Trust Company, receiver for Inland Empire Insurance Company in the above proceeding came on regularly for hearing before the Court on the 9th day of February, 1959 at the hour of 9:30 a. m. and was thereafter continued for hearing to the hour of 2:00 p. m. on the 12th day of February, 1959. The court having heard the arguments of counsel and having considered the matter, and it appearing to the court that the law firm of Lewis, Roca, Scoville & Beau-champ of Phoenix, Arizona on or about the 18th day of June, 1956 filed a general claim with the receiver of Inland Empire Insurance Company and it further appearing that on or about the 22 day of October, 1958 Continental Bank & Trust Company as receiver of Inland Empire Insurance Company filed a document entitled Petition for Judgment against the said Lewis, Roca, Sco-ville & Beauchamp, which petition for judgment was in effect a counterclaim; and it further appearing to the court that the said law partnership of Lewis, Roca, Scoville & Beau-champ has not made an answer or other responsive pleading to said petition for judgment, but it further appearing to the court that it would not be in the interest of justice and equity to enter the default at the present time without further notice to said partnership but that the said Lewis, Roca, Scoville & Beauchamp should be afforded a further opportunity to answer or otherwise plead”

quoted by 1 later decision, including 174 F. Supp. 458 - Freed v. Inland Empire Insurance Company

Relies on United States v. United States District Court for the Southern District of New York · Lewis, Roca, Scoville & Beauchamp, a Partnership v. Inland Empire Insurance Company

Good law ✅— No negative treatment on recordhow we know

Opinion by Per Curiam · Decided 1959-01-19

How this case has been cited

Cited by 10 later decisions — most recently March 1977

8 federal appellate · 1 district ·

40195919601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

John P. Frank, Tucson, Ariz., for petitioner.

Calvin L. Rampton, Salt Lake City, Utah (David K. Watkiss and Arthur H. Nielsen, Salt Lake City, Utah, on the brief), for respondent in intervention.

Before HUXMAN, MURRAH and BREITENSTEIN, Circuit Judges.

PER CURIAM.

¶1

Lewis, Roca, Scoville & Beauchamp, a partnership, has moved for leave to file a petition for a writ of mandamus directed to the Honorable A. Sherman Christenson, Judge of the United States District Court for the District of Utah, and based on asserted noncompliance with the mandate of this court in case No. 5835 entitled Lewis, Roca, Scoville & Beauchamp, a partnership, Appellant, v. Inland Empire Insurance Company, Appellee.1 Continental Bank & Trust Company, receiver for Inland Empire Insurance Company, has sought leave to intervene and tendered an answer to the petition for mandamus.

¶2

The motion for leave to file the petition for mandamus is granted as is also the petition of the receiver to intervene. The answer of the receiver is accepted for filing. The case has been adequately briefed and argued in connection with these preliminary matters.

¶3

The pertinent facts prior to remand are set out in our opinion in case No. 5835. After remand the receiver filed a "petition for judgment" which in effect was either a counterclaim or setoff. The trial court entered judgment for the partnership but refused to order immediate payment, holding that payment must await determination of the receiver's "petition for judgment."

¶4

In case No. 5835 we held that the Kentucky attachment brought by the partnership to collect its Arizona judgment was good. The Utah receivership proceedings came after the Kentucky attachment. The receiver by action in the United States District Court for the Eastern District of Kentucky, to which the partnership was not a party, secured possession of the attached securities, converted them to cash and holds the proceeds in Utah.

¶5

The stipulation of the parties that the validity of the Kentucky attachment be determined by the Utah court, while commendable from the standpoint of permitting the expeditious determination of rights, has resulted in the present difficulty. The securities were subject to the lien of the attachment when taken and converted by the receiver. The preference to which the partnership is entitled is to have its claim immediately paid out of the attached property without any impediment arising from interference by the receiver with that property. Such was the intent of our mandate.

¶6

The praiseworthy solicitude of the trial court for the orderly disposition of the receivership proceedings cannot deprive the partnership of the advantage gained by the prior attachment or create in the receiver any advantage resulting from its conversion of the securities in disregard of the attachment. We deemed that our mandate was clear in the then posture of the case. The events which have transpired since remand do not deprive the partnership of its right to immediate payment out of the attached property.

¶7

Mandamus is the proper remedy to enforce compliance with a mandate.2 Accordingly the writ is granted and the respondent is directed to enter an appropriate order requiring the receiver to pay forthwith the claim of the partnership out of the proceeds obtained by the receiver from the sale of the attached securities. We decline to determine in this proceeding any issues relating to the receiver's "petition for judgment."

Notes:

1

Reported at 259 F.2d 318

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