Ivor B. Clark Co. v. Hogan
Ivor B. Clark Co. v. Hogan
Opinion of the Court
Essentially, this ease involves a dispute between two creditors, Ivor B. Clark Co., Inc., and James Talcott, Inc., over the right to certain past and future rental payments from Georgia real estate owned by their mutual debtor the International Park Corporation and its president Moreland H. Hogan.
On February 13, 1968, the District Court, Ryan, J., entered judgment for Clark, which, as amended February 21, 1968, provided for recovery of certain sums against International and Hogan. Aff’d without opinion (2d Cir. June 14, 1968), cert. denied, Hogan v. Clark Co., Inc., 393 U.S. 961, 89 S.Ct. 399, 21 L.Ed. 2d 374 (1968). Pursuant to that judgment, Clark served Hogan and International on or about March 4, 1968, with restraining notices forbidding interference with any property in which they
In his opinion of October 23, 1968, and supplemental memorandum opinion of November 14, 1968, upon reargument, from which Taleott appeals, Judge Ten-ney held that since Taleott had not taken the steps necessary to effectuate International’s assignment of rental payments contained in the security agreement, it did not have a prior interest in those rents under Georgia law.
For the reasons stated in Judge Tenney’s thorough and well reasoned opinions, we affirm his decision that Clark rather than Taleott is entitled to the disputed rental payments. In so doing, we reject Talcott’s argument, based upon Glassman v. Hyder, 23 N.Y.2d 354, 296 N.Y.S.2d 783, 244 N.E.2d 259 (December 12, 1968), that Judge Tenney lacked jurisdiction to enforce Clark’s judgment. Rule 69(a) provides: “The procedure on execution * * * shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought * * (emphasis added). Glassman, a novel interpretation of New York law, was not decided until after Clark had issued restraining notices and sought and obtained an order of enforcement from the district court. Moreover, Glassman is factually distinguishable, since it concerned the validity of an attachment of only future rents on out of state lands as a basis for obtaining quasi in rem jurisdiction, whereas the case before us involved the execution of a judgment which, when it reached Judge Ten-
Lastly, Talcott claims that Judge Ten-ney was without jurisdiction to enter his third memorandum opinion and order dated January 23, 1969, after notice of appeal had been filed but before the appeal had been docketed. Upon Talcott’s motion to amend the previous opinions and to stay the judgment pending this appeal, Judge Tenney fixed the amount of rentals Talcott was required to turn over to Clark and the supersedeas bond, upon which the grant of the stay was to be conditioned, at that same amount. Since Judge Tenney did have jurisdiction to fix the bond necessary for the granting of the stay, see Rule 62(d), and since that task required the correction of the inadvertent omission in his previous opinions, we find no defect of jurisdiction in this particular situation. Moreover, we are convinced that on the merits Judge Tenney’s determination of the amount of the judgment against Talcott is correct.
The orders are affirmed.
. Prior to Clark’s issuance of restraining notices, International’s tenants had been instructed to send their rental payments to a Post Office box registered in the name of “International Park Corporation — Rental Account.” Such payments were in fact received and controlled by Taleott. Subsequently, on March 14, 1968, Taleott and Hogan instructed all the tenants to make their future rental payments to James Taleott, Inc. directly.
. More specifically, Judge Tenney construed the Deed and Assignment as a mortgage which did not by its execution invest Taleott with a right to future rental payments. And, since Taleott had not taken the steps necessary under Georgia law to become a “mortgagee in possession,” International, at the time in question, still possessed the legal right to the rents. Consequently, Clark’s restraint of such rental payments was proper.
Reference
- Full Case Name
- IVOR B. CLARK CO., Inc. v. Moreland H. HOGAN, International Office Park Inc. and International Park Corporation, and James TALCOTT, INC., Third-Party Movant-Appellant
- Cited By
- 1 case
- Status
- Published