Rehearing Denied Aug. 3 1953.: June 25, 1953.
Before PHILLIPS, Chief Judge, and MURRAH and PICKETT, Circuit Judges.
This is an action brought by Investors Royalty Company, Inc.*fn1 against Market Trend Survey, Inc.*fn2 and others. The action was commenced in the District Court of Tulsa County, Oklahoma, and duly removed to the United States District Court for the Northern District of Oklahoma.
In the original complaint Royalty sought an injunction. Thereafter, Royalty filed an amendment to its complaint, in which it alleged that A. Clifton Stewart and Margaret A. Stewart, as officers and directors of Survey, Inc., and as individuals, combined and confederated together in the publishing and distribution of various letters and pamphlets; and that the overt acts of the Stewarts "in mailing and distributing the * * * letters and pamphlets * * *, containing false, misleading, untrue statements, and slanderous attacks upon the officers and directors of" Royalty throughout Oklahoma, Minnesota and other states were done for the purpose of injuring Royalty and creating dissension among its stockholders, were wilful and malicious, and caused damage to Royalty in the amount of $10,000.
Royalty sought actual and exemplary damages.
A writ of attachment was issued and a levy was made upon certain shares of corporate stock. Royalty undertook to make service by publication.
The defendants appeared specially and moved to quash service by publication on the following grounds:
1. That the original action for injunction is not a civil action for recovery of money within the Oklahoma attachment statute;
2. That the claim set up in the amendment sounds in tort;
3. That the action is not for a fraudulently contracted debt or a fraudulently incurred liability or obligation, and
4. That the service by publication is grounded upon a purported attachment of shares of stock issued by Royalty, a foreign corporation domesticated in Oklahoma; that it does not appear that the principal portion of the property and assets of Royalty is located in Oklahoma and that in fact the principal portion of the property and assets of Royalty is not and was not at the time of such attachment and attempted service by publication located in the State of Oklahoma, and therefore the shares were not subject to attachment under the provisions of 18 O.S.A., § 1.96.
Title 12, O.S.A. 1951, § 1151, in part reads as follows:
"Grounds for attachment. - The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated:
"9. Fraudulently contracted the debt, or fraudulently incurred the liability or obligations for which the suit is about to ...