
    United States v. Klytia Corporation
    (No. 4296)
    
    
      United States Court of Customs and Patent Appeals,
    October 30, 1940
    
      Charles D. Lawrence, Acting Assistant Attorney General Dorothy C. Bennett, special attorney, of counsel), for the United States.
    No appearance for appellee.
    
      John R. Rafter, Amicus Curiae.
    
    [Oral argument October 3, 1940, by Mrs. Bennett and Mr. Rafter]
    Before Garrett, Presiding Judge, and Bland, Hatfield, Lenroot, and Jackson, Associate Judges
    
      
       C. A. D. 150.
    
   Lenroot, Judge,

delivered the opinion of the court:

This is an appeal by the United States from a judgment of the United States Customs Court, Second Division, reversing the judgment of the trial court in certain reappraisement proceedings involving fifteen importations by the Klytia Corporation of perfumery exported from France and entered at the port of New York during the period from July 26, 1929 to July 11, 1930. Thirteen of tbe shipments were appraised under the provisions of the Tariff Act of 1922, and two shipments were appraised under the Tariff Act of 1930.

In view of the conclusion which we have reached with respect to a preliminary question hereinafter set out and discussed, it is unnecessary further to refer to the issues involved upon the merits of the controversy.

It appears from the record that the original appeals for reappraisement were signed as follows: “Klytia Corp., J. F. Schmitt, Appellant.” Below this signature is the notation “Notify Carl W. Stern, 24 State St.” Upon the trial of the case before the trial judge, appearance for the plaintiff was noted as follows: “Carl W. Stern, Esquire, for the plaintiff, by Harry M. Farrell, Esquire, of counsel.” It further appears that said Farrell conducted the case on behalf of appellee before the trial court. During the trial the Government established that the appellee corporation was created under the laws of the State of New York, and that subsequent to the taking of said appeals for reappraisement said appellee corporation had been dissolved by proclamation of the Secretary of State of the State of New York. The Government thereupon moved to dismiss the appeals upon the ground that the court had no jurisdiction of the plaintiff. In response to this motion Mr. Farrell stated as follows:

Mr. Farrell. In answer to that, if the Court please, I think that is true. We can’t find this corporation; they are out of business; and of course, as shown by this, they have a date here from the Secretary of State as to just when they were- — - whatever, I don’t know; probably by proclamation — dissolved. They were dissolved because they were no longer doing business; but, however, these appeals come before the Court, and under the law, I submit that it is the duty of the Court to find the value; and I might say that the reason for proceeding at this time is the fact that most of these are warehouse-bond entries, and Mr. Stern is on the bond.

The trial court reserved decision upon the motion, the testimony was completed, and the case was submitted. Later the court granted the motion and judgment was entered dismissing the appeals for reappraisement.

Application for review of said decision and judgment was seasonably made in the following form:

To the United States Customs Court,
&01 Varick Street, New York, N. Y.
Gentlemen: Pursuant to the provisions of Section 501 of the Tariff Act of 1930, the undersigned hereby make application for a review of the decision of Judge Chas. P. McClelland as to the dutiable value of the merchandise covered by appeal to United States Customs Court’s Reappraisement No. 97410-A, Entry No. 719177, Collector’s Reappraisement No. 1940.
Respectfully,
The Klytia Corp.,
Appellant,
Carl W. Stern,
Atty.

The Second Division of the Customs Court, sitting in its appellate capacity, reversed the judgment of the trial court and remanded the case to it for consideration upon the merits upon the record presented. This action was based upon section 29 of the General Corporation Law of the State of New York, as amended, which section reads as follows:

CorpoRate Existence to Continue in Case oe Dissolution: Authority of
Directors
Upon the dissolution of a Corporation for any cause and whether voluntary or involuntary its corporate existence shall continue for the purpose of paying, satisfying and discharging any existing liabilities or obligations, collecting and distributing its assets and doing all other acts required to adjust and wind up its business and affairs and it may sue and be sued in its corporate name. Unless other persons shall be designated by law or by a court of competent jurisdiction, the directors shall have full power to settle its affairs and to distribute to the persons entitled thereto the assets remaining after the payment of debts and necessary expenses. The corporate property may be transferred or conveyed by an instrument executed in the corporate name by one or more of the officers •or directors thereunto authorized by the directors. The provisions of sections twenty-seven and twenty-eight shall apply to the meetings and acts of the directors.

Thereafter the trial court rendered a decision upon the merits, bolding that as to all entries made under the Tariff Act of 1922 there was no substantia] evidence establishing that the appraisements made by the local appraiser were erroneous, and therefore it dismissed the appeals to reappraisement involving such entries; as to the two entries made under the Tariff Act of 1930 the court held that the value of the merchandise there involved was the appraised value.

An application for review embracing all of the appeals for reap-praisement was filed and was signed as follows: “The Klytia Corp., Appellant. Carl W. Stern, Atty., 8 Bridge Street, N. Y. C.” The Second Division of the Customs Court reversed the judgment of the trial court and rendered judgment in favor of the Klytia Corporation.

On October 25, 1939, appellant filed in this court a petition for review of such judgment, together with assignment of errors. The record returned to this court discloses no proof of service of such petition for review and assignment of errors upon any person, and there has been no appearance in this court by or on behalf of appellee. The Government filed its brief in this court, and the cause was set for hearing on October 3, 1940.

On September 27, 1940, John R. Rafter, Esquire, an attorney of this court, filed a motion for permission to appear as an amicus curiae in this case, file a brief, and be heard orally. On September 30 counsel for appellant filed its consent to the granting of said motion, and the same was granted by us on said date. On the same day a brief by said amicus curiae was filed. In this brief there was raised, inter alia, the question of the jurisdiction of this court to entertain the appeal of the Government, upon the ground, as stated in the brief, that no service had been made upon appellee or any person representing it “of a copy of its (the Government’s) assignment of errors or copies of the printed record or of its brief herein, as required by Rules XVI and XTX of the Rules of this Court.” Said brief set out the dissolution of appellee, as hereinbefore referred to, and the law of the State of New York continuing the corporation and its board of directors, in case of dissolution, for certain purposes, among which was its liability to be sued in its corporate name. Said brief further set forth that on March 17, 1939, Carl W. Stern, the attorney of record for appellee in the case at bar, died, and that prior to the rendition of the judgment here involved by the Customs Court, Second Division, the court, in the presence of Government counsel, was informed of the death of said Carl W. Stern. Said brief further set forth that the Government’s petition for review of the judgment of the appellate division was filed in this court on October 25, 1939, and that under date of October 24, 1939, copies of said petition and assignment of errors were mailed to “Carl W. Stern, Esquire, 8-10 Bridge Street, New York, N. Y.” and to “Klytia Corp., c/o Carl W. Stern, Esquire, 8-10 Bridge Street, New York, N. Y.” It was further stated in said brief that no copy of the petition for review or assignment of errors, or copies of the printed record or the Government’s brief, have ever been served upon the appellee or any of its directors. After citing a number of cases to the point that this court is without jurisdication to entertain the involved appeal by reason of lack of said service upon appellee, the brief suggests that the appeal should be dismissed by the court, either upon motion by the amicus curiae, or upon its own motion.

On October 3, 1940, the Government filed a brief in reply to the brief of amicus curiae. In this brief it is stated:

The records in the office of the Assistant Attorney General show that the Government’s petition for review, and assignments of error in this case, Customs Appeal 4296, were mailed to Klytia Corporation, c/o Carl W. Stern, 8-10 Bridge Street, New York, N. Y., on October 24, 1939, within the 60-day statutory period, and also to Carl W. Stern, individually, at the same address, on the same date; and that the said petition and assignments of error were accepted at the address to which they were mailed, and were not returned as undelivered. * * * [Italics quoted.]

It is further stated in said reply brief:

The judgment appealed from was rendered by the Second Division on August 30, 1939, subsequent to the death of Carl W. Stern and with full knowledge of such death, Mr. Harry M. Farrell, of counsel, having so notified the appellate division orally, when the case was called for oral argument on June 22, 1939. At that time, Mr. Harry M. Farrell, also notified the appellate division that he had been unable to locate any officers or representatives of the Klytia Corporation. Briefs had been filed before the appellate division prior to the death of Carl W. Stern, and the Presiding Judge of the Second Division accordingly ordered the cases submitted.

In this brief the Government also challenged the right of the amicus curiae to raise any question of the sufficiency of service of the Government’s petition for review and assignment of errors upon appellee.

On October 9, 1940, the Government filed with this court a request for permission to file an affidavit as proof of service of copies of the Government’s petition for review and assignment of errors herein. This request was granted on October 25, 1940, and the record now contains proof of the mailing of copies of the Government’s petition for review and assignment of errors, addressed as follows:

Klytia Corporation,
c/o Carl W. Stern, Esq.,
8-10 Bridge Street,
New York, N. Y.
Carl W. Stern, Esquire,
8-10 Bridge Street,
New York, N. Y.

Inasmuch as the Government has, in its brief, admitted all of the facts bearing upon the sufficiency of service of copies of the petition for appeal and assignment of errors upon appellee, it is unnecessary for us to consider any alleged statements of fact in the brief of amicus curiae, or his right to raise the question of the sufficiency of such service, for we are convinced that if appellee has not been served with copies of said petition and assignment of errors, it is the duty of this court, sua suponte, to consider and determine whether the Government’s appeal may now be heard upon its merits.

Section 198 of the Judicial Code (U. S. C. title 28, sec. 310) governing appeals to this court from the United States Customs Court provides as follows:

If the importer, owner, consignee, or agent of any imported merchandise, or the collector or Secretary of the Treasury, shall be dissatisfied with the decision of the United States Customs Court as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification, or with any other appealable decision of said Court, they, or either of them, may, within sixty days next after the entry of such decree or judgment, and not afterwards, apply to the Court of Customs and Patent Appeals for a review of the questions of law and fact involved in such decision. * * * Such application shall be made by filing in the office of the clerk of said court a concise statement of errors of law and fact complained of; and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be. * * * [Italics supplied.]

Rule XVI of this court, reads as follows:

Assignment op Errors
The party seeking a review of any appealable decision of the United States Customs Court shall file with the clerk of this court, in duplicate, a concise statement of the errors of law and fact complained of, and a copy of such statement shall be served on the collector or on the importer, owner, consignee, agent, or attorney, as the case may be, either by mail or by delivering the same personally to the party to be served or to his attorney, who shall have regularly appeared before said United States Customs Court on or before the date of such application. Such service, in case of mailing, shall be by depositing in a post office a copy of such statement in a sealed envelope plainly addressed to the party or attorney to be served, at his place of business or residence, with postage thereon fully prepaid. In all cases where the United States is not the appellant, such application for review shall be accompanied by the filing fee of $6.

The construction of said section 198 of the Judicial Code was considered by this court in the case of Germania Importing Co. v. United States, 8 Ct. Cust. Appls. 97, T. D. 37218. In that case the assignment of errors was not served upon the collector within 60 days from the entry of final judgment by the Board of General Appraisers (now the United States Customs Court), but was served a little more than 90 days thereafter. The Government moved to dismiss the appeal upon the ground that such service bad not been had within 60 days from the entry of judgment by the board. In denying this motion the court, after quoting section 198, supra, stated:

After a careful examination of the authorities afforded by the decisions of the Supreme Court of the United States and of several States upon statutes similar in language to this, the court is of the opinion and holds that the provision of section 198, supra, “and a copy of such statement shall be served on the collector, or on the importer, owner, consignee, or agent, as the case may be” is not jurisdictional and if omitted or unreasonably delayed this court has ample power to direct its issue.

We then quoted the following from the case of Lockman v. Lang, 132 Fed. 1:

A citation to appear at the hearing in the appellate court is not jurisdictional in its nature. Its only purpose is to give notice to the appellees that the appeal will be prosecuted, so that they may appear and have a hearing if they desire. It is a part of the procedure prescribed not to give.jurisdiction to the appellate court, but to secure to the appellees a fair opportunity to present to that court their arguments in support of the decision below. If, through accident, or mistake, the citation has been omitted, and no notice has been given to the appellees-of the hearing, the appellate court has ample power to direct its issue and to continue the case until reasonable notice of the hearing has been given. But it may not dismiss an appeal, which is a matter of right, and which is duly allowed by the trial court by the mere acceptance of security for its prosecution (Simpson v. First National Bank (C. C. A.) 129 Fed., 257, 260) until an opportunity to give the requisite notice has been furnished, whether the application for the citation is made before or after the statutory time for the appeal has elapsed, (citing cases.) The appeal in this case was duly allowed, and the case was transferred to the jurisdiction of this codrt by the acceptance of the security offered by Williams on March 31, 1903, within the 10 days prescribed for the appeal.

We then cited a large number of cases in support of our statement above quoted, after wbicb tbe court concluded its opinion as follows:

In the appeal of Cohn & Rosenberger v. United States, decided by this court May 17, 1912 (3 Ct. Cust. Appls., 288; T. D. 32575), the same question was raised upon motion as herein presented. In that case the Government took precisely the position herein taken by the importers and was sustained by this court. * * * Since said time the practice here complained of has been pursued without question, wherefore it would seem that this long-continued practice might well justify its exercise by the importers in this case.
The decision of the board herein was rendered on or about June 21, 1916, and a copy of the importers’ petition served on the collector September 25, 1916. Under the particular circumstances of this ease, the court deems that notice to the collector was not unreasonably delayed. ' The motions oh behalf of the Government are denied and that on behalf of the importers in Germania Importing Co. v. United States granted. »

It will be observed that in the Germania Importing Co. case last above cited it was expressly held that failure to serve a copy of the assignment of errors upon the opposing party was not a jurisdictional defect, and that such service might be made after the lapse of the statutory period for taking an appeal.

There is, however, nothing in the opinion in said case to indicate that this court had jurisdiction to determine the merits of an appeal in the absence of service, actual or constructive, upon the opposing party or his attorney, of a copy of the assignment of errors. The cases cited in the opinion clearly indicate that such service must be had before the court may proceed to a determination of the merits of the case.

Whether or not, if it were shown that actual service could not be had, we would have jurisdiction to proceed to a determination of the case, or whether in such event we might upon application permit service by publication so as to give constructive notice to appellee, we need not here determine, for the reason that there is no showing before us that a valid service upon appellee might not be had in the event that the service relied upon by appellant is held to be invalid.

In any event, we are clear that if no service of the assignment of errors has been had upon appellee, as the statute provides, we should not proceed to a determination of the merits of the appeal at this time.

This, we think, is the clear implication of the decision of this court in the case of Germania Importing Co. v. United States, supra.

We next come to the consideration of the question of whether the record discloses service upon appellee of a copy of the assignment of errors.

The Government contends that the mailing of a copy of the assignment of errors, addressed to the “Klytia Corporation, c/o Carl W. Stern, 8-10 Bridge Street, New York, N. Y.” constituted a valid service upon said corporation, within the meaning of section 198, supra, and Rule XVI of this court, claiming that the only address given by appellee was 8 Bridge Street, New York City, and tbat the notice was mailed to that address and was not returned to the sender.

The difficulty with this contention is that appellee never gave' the location of 8 Bridge Street, New York City, as its place of business or residence. As hereinbefore stated, the original appeals for reappraisement were signed “Klytia Corp., J. F. Schmitt, Appellant. Notify Carl W. Stern, 24 State St.” Manifestly this did not purport to give the place of business or residence of appellee. The words “Notify Carl W. Stern, 24 State St.” merely indicated that Carl W. Stern was the attorney or agent of appellee, to whom any relevant notices might be sent, and it afterwards appeared that Carl W- Stern was the attorney of record for appellee.

The application for review of the judgment of the trial court dismissing the appeals to reappraisement was signed: “The Klytia Corp., Appellant, Carl W. Stern, Atty.” There no address was given.

The second application for review, which resulted in the judgment from which the appeal to this court was taken, was signed: “The Klytia Corp., Appellant. Carl W. Stern, Atty., 8 Bridge Street, N. Y. G.” Clearly this purported to give only the address of the attorney for appellee, and not its place of business or residence.

It seems too plain for argument that mailing a copy of the petition for review and assignment of errors to the “Klytia Corporation, c/o Carl W. Stern, Esq., 8-10 Bridge Street, New York, N. Y.” did not, in view of the death of said Stern, constitute service, upon appellee.

The Government next contends that “Inasmuch as no formal written notice of the death of Carl W. Stern has been filed with the clerk of the Customs Court in these cases, the said Carl W. Stern then remained, and still remains, attorney of record in the court below,” and that therefore copies of the petition for review and assignment of errors mailed to “Carl W. Stern, Esquire, 8-10 Bridge Street, New York, N. Y.” constituted a valid service of the same upon appellee.

This contention by the Government is made in the face of the fact that it admits that Carl W. Stern died before the rendition of the judgment appealed from, and that the Customs Court, Second Division, was advised of such death by counsel who conducted the case in behalf of appellee, prior to the rendition of such judgment, and in the presence of Government counsel.

It is elementary law that the death of an attorney engaged by a client terminates a mere contract of employment.

In the case of Tripp v. Santa Rosa Street Railroad Company, 144 U. S. 126, the court said:

* * * Service may be had upon his attorney or counsel with like effect as upon the party himself, but when counsel of record is dead, it cannot be served on his personal representative, nor even on his partner if not regularly appearing on the record as counsel in the cause. * * *

See also Bacon et al. v. Hart, 66 U. S. 38, where it was held that service of a citation upon the executrix of the deceased counsel did not constitute service thereof upon the party or his counsel.

We are therefore constrained to hold that there has been no service of the petition for appeal or assignment of errors upon appellee or upon its attorney or agent.

It further appears from the Government’s brief that Rule XIX of this court has not been complied with; said rule provides that an appellant shall serve three copies of the printed record on the appellee or his counsel, and that within 30 days after receipt of the printed record appellant shall serve upon appellee or his counsel not less than three copies of his brief. The rule further provides that the court may on motion extend the time for filing of briefs.

That this rule has not been complied with is apparent from the following statement in the Government’s reply brief:

No notice of appearance was filed in this Court by counsel for appellee, as provided in Rule XXIV of the Rules of this Court. Therefore, the Government mailed copies of the printed record to John R. Rafter, Esq., on whose behalf Harry M. Farrell, Esq. had appeared as trial counsel in the court below. That the said Harry M. Farrell did appear as trial counsel for and on behalf of the said John R. Rafter, is conceded in the following statement appearing on page 2 of the instant motion filed by the said John R. Rafter, requesting permission to appear herein as amicus curiae:
The undersigned was retained by the said Carl W. Stern during his lifetime, as counsel in the above case which was then pending in the United States Customs Court, the trial having been actually conducted by Harry M. Farrell, Esq., as trial counsel, who was and is associated with the office of the undersigned.
Thereafter, within the time allowed by this Court, one printed copy of the Government’s brief was mailed to the said John R. Rafter, Esq., three copies were mailed to Messrs. Laughlin & Stern, attorneys for the Estate of Carl W. Stern, 70 Pine Street, New York, N. Y., and one copy was mailed to Fred Bennett, Esq., 8 Bridge Street, New York, N. Y. surviving law partner of Carl W. Stern.

Witb regard to the above statement it is sufficient to say that John R. Rafter never appeared as attorney or counsel in these cases, and the record discloses that Harry M. Farrell appeared, not as counsel for Mr: Rafter, but that Carl W. Stern appeared “by Harry M. Farrell, Esquire, of counsel.” Whether, upon the record before us, service upon Mr. Farrell would have been sufficient we need not here inquire, for no such service was made.

It is clear that service upon Mr. Rafter did not comply with Rule XIX. It is also clear that service upon the attorneys for the estate of Carl W. Stern, and service upon Fred Bennett, Esq., as surviving law partner of Carl W. Stern, was insufficient to comply with said rule. Tripp v. Santa Rosa Street Railroad Company, supra.

For the reasons above stated, we must hold that there has never been any service of the printed record or appellant’s brief upon appellee or its counsel.

In view of all tbe foregoing, the question remains as to what disposition of the case should be made at this time.

We have no doubt of our power, sua sponte, to dismiss this appeal for failure to comply with section 198, supra, and Hules XVI and XTX of the rules of this court; but, under all the circumstances, this we are loath to do, although appellant has had more than 1 year in which to make service upon appellee of its assignment of errors, and several months in which to serve upon appellee copies of the printed record and its brief.

It does not appear that any attempt was made by the Government to ascertain who constituted the board of directors of appellee corporation at the time of its dissolution, so that service might be made upon them. However, the Government should not be deprived of its right to review of the judgment appealed from if such review can be legally had. There are here no equitable considerations entitling appellee to the exercise of any discretion by the court in its behalf that the court may possess.

We think the ends of justice will be best served by giving to appellant another opportunity to make service upon appellee of copies of the assignment of errors, printed record, and the brief of appellant, and for that purpose the hearing of this case will be continued to the February session of this court, and appellant is granted time to January 1, 1941, to make the required service of the papers aforesaid upon appellee.

During the oral hearing of the appeal before us appellant’s counsel asked leave to file a motion to amend the title of this proceeding by adding thereto, as additional undisclosed appellees, the names of M. J. Corbett & Co., Inc., 8 Bridge Street, New York, N. Y. and/or ,Mr. Leo C. Stern and Mr. H. Richard Stern, 70 Pine Street, New York, N. Y., executors of the last will and testament of Carl W. Stern, deceased, late of 8 Bridge Street, New York, N. Y. In support of this motion there is an affidavit by one Jacob F. Schmitt which reads as follows:

Jacob F. Schmitt, of 419 Scarsdale Road, Crestwood, New York, and employed at the Chinese Handcrafts, Inc., 279 Fifth Avenue, New York, N. Y., being duly sworn, deposes and says:
That I am the same person who signed the appeal to reappraisement No. 97410-A, a copy of which is on pages 5 and 6 in the Transcript of Record on appeal from the United States Customs Court to the United States Court of Customs and Patent Appeals no. 4296 — the United States, appellant, vs. Klytia Corporation, appellee; that I was a clerk in the office of M. J. Corbett & Company, customs brokers, for a period of over twenty years.
Carl Stern, customs attorney, owned the controlling interest in this company and I had a power of attorney to sign for M. J. Corbett & Company and also Carl Stern, and in my work as a clerk in the office, I had frequent occasion to sign for both M. J. Corbett & Company and Carl Stern, signing customs forms and papers over a period of years. Consequently, when I signed the appeal to reappraisement above cited, it was to me only a routine matter and I did not sign it as a corporate officer as I never was at any time an officer of the Klytia Corporation; that the Klytia Corporation was only one of many other firms for which M. J. Corbett & Company did customs brokerage work.
(Sgd) Jacob F. Schmitt.

Permission to file said motion was granted on October 25, 1940. Said motion is now denied. It does not affirmatively appear that said Schmitt signed the original appeals for reappraisement as the agent of Corbett & Co. On the contrary, the clear implication from the signatures to the appeals for reappraisement is that the said Schmitt signed as agent for the Klytia Corporation. Below the signatures “Klytia Corp., J. P. Schmitt” is found the word “Appellant," clearly signifying that only one party, viz, the Klytia Corporation, was taking the appeal. This view is confirmed by the subsequent proceedings, wherein both applications for review by the appellate division of the Customs Court were signed by “The Klytia Corp., Appellant, Carl W. Stern, Atty.”

We are satisfied that at no time has there been any undisclosed appellee in this case, and that throughout the only party involved, other than the United States, has been the appellee Klytia Corporation.

An order will be entered denying the last-mentioned motion of appellant, and continuing this appeal to the February session of this court, with permission to appellant to make service of the necessary papers upon appellee not later than January 1, 1941.  