Butler v. Ungerleider ( 1951 )

FRANK, Circuit Judge.

1. On the facts here, the order quashing service was appealable.¹

2. The suit is ancillary to the original action in which defendant’s assignor obtained the judgment against plaintiff in the court below. Accordingly, as defendant is a privy to the party who obtained that judgment, the court had jurisdiction of this suit, and service within the district was unnecessary. All that was required was an order, for adequate notice to defendant, based upon an appropriate showing.² As plaintiff met those requirements, the order quashing service was erroneous.

Reversed.

1 . Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372.

2 . O’Connor v. O’Connor, C.C.W.D.Tex., 146 F. 994, 997; Hanna v. Brictson Mfg. Co., 8 Cir., 62 F.2d 139, 149; cf. Pacific R. Co. v. Missouri Pacific R. Co., C.C.E.D.Mo., 3 F. 772; Pacific R. Co. v. Missouri Pacific R. Co., 111 U.S. 505, 522, 4 S.Ct. 583, 28 L.Ed. 498; Minnesota Co. v. St. Paul Co., 2 Wall. 609, 633-634, 17 L.Ed. 886; Leman v. Krentler-Arnold Co., 284 U.S. 448, 454-455, 52 S.Ct. 238, 76 L.Ed. 389; Dunn v. Clarke, 8 Pet. 1, 2-3, 8 L.Ed. 845; Higgins v. California Prune & Apricot Growers, 2 Cir., 282 F. 550, 554-555; 2 Moore’s Federal Practice (2d ed.) 933-934; Moore and Rogers, Federal Relief from Civil Judgments, 55 Yale L.J. 623, 655— 656. In Merriam v. Saalfield, 241 U.S. 22, 36 S.Ct. 477, 60 L.Ed. 868, it was held that one who had financed the defense of a law-suit, bound by the judgment therein for purposes of res judicata, wus not a “privy” in the sense here involved.