stockholders in an enemy-tainted corporation under the Trading With the Enemy Act, however, is that the corporate veil can be pierced to determine all interests in the corporation; they are permitted to intervene because the corporation cannot or will not adequately represent their interests and the litigation is not subject to their control. The test of privity is control of the litigation and participation therein, and not the degree of control of the party corporation itself. There is no doubt that Fritz von Opel had full control of the litigation of the suit brought by the plaintiff corporation. Not only did he appear as a witness and cooperate in prosecution of the suit, but he retained counsel, assisted in pre-trial and trial proceedings and the motion for a new trial, and authorized prosecution of the appeal as plaintiff's representative. The record shows active control, participation and assistance to protect his asserted proprietary and financial interests. This establishes clearly his privity with plaintiff in the original action. Application of the doctrine depends accordingly upon the identity of issues.
Since the suit by way of intervention of Fritz von Opel is a different cause of action, the previous decision operates as an estoppel 'only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.' Cromwell v. Sac County, 1878, 94 U.S. 351, 353, 24 L. Ed. 195, 198; Partmar Corporation v. Paramount Pictures Theatres Corp., 1954, 347 U.S. 89, 74 S. Ct. 414, 98 L. Ed. ; Commissioner of Internal Revenue v. Sunnen, 1948, 333 U.S. 591, 68 S. Ct. 715, 92 L. Ed. 898. '* * * (A) right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.' Southern Pac. R. Co. v. United States, 1897, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355, 377; State of Oklahoma v. State of Texas, 1921, 256 U.S. 70, 41 S. Ct. 420, 65 L. Ed. 831.
In its previous decision of this suit, the Court said, 82 F.Supp. at page 604: 'The evidence presented in this case has extended to many disputed items of fact, but it develops that upon reaching findings as to a limited number of them, this suit may be decided.' The Court thus determined that the findings of fact and conclusions of law which it made were the rights, questions, facts and points put in issue which were necessary for its judgment. Fritz von Opel's interest, status and activities were considered insofar as they were necessary to determine that the neutral aspect of ownership in the property sought to be recovered was insignificant. Without spelling out all the facts upon which this conclusion was based, the Supreme Court adopted this finding. Thus this is not a case in which that Court has held one ground sufficient to affirm a judgment and refused or found it unnecessary to consider alternative grounds, but one where this Court refused to reopen the case for consideration of matters outside of the pleadings and now in light of a decision, described as novel by the Supreme Court, the Court in effect is instructed to do so.
The Court accordingly concludes that its previous findings and conclusions operate as an estoppel as to all issues framed, without prejudice to the right of either party to offer additional evidence on issues raised supplemental to, but not contradictory of, such determinations.
Intervener has moved for an order directing the issuance of letters rogatory to the appropriate judicial authority in Switzerland to take the depositions upon oral examination of two persons residing there. Defendant asserts the issuance of letters rogatory would be a futile gesture because the existence of certain Swiss secrecy laws would prevent the obtaining of testimony and the production of necessary books and records, and that if such letters are issued no testimony in form admissible in evidence will be obtained because it must be taken in accordance with civil law procedure. Defendant requests in the alternative, if intervener's motion is granted, that intervener be required to advance defendant's necessary expenses for the taking of the depositions and that letters rogatory be issued only if the testimony can be obtained prior to October, 1954.
The Court is of opinion it should not at this time anticipate difficulties in deposition procedures which may prove to be non-existent, and will not prevent the parties from making discovery as an essential part of pre-trial procedure. Rule 26(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides it is not ground for objection in taking depositions that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. It is assumed that any depositions taken or to be taken that may be offered in evidence will relate to the issues in accordance with this opinion. The Court deems it unnecessary to require that intervener advance defendant's necessary expenses, but will require that intervener give security for all costs and charges that may be adjudged against him on final disposition of the cause as provided by the Code of Laws for the District of Columbia, § 11-1506. The suggestion of defendant that the time for obtaining depositions upon letters rogatory be limited appears reasonable to prevent undue further delay in the disposition of the cause and the Court will require the depositions to be completed and filed by October 15, 1954.
The Court accordingly will grant defendant's motion for an order to declare inadmissible upon trial any depositions, testimony or other evidence to be offered which tend to contradict or vary the findings of fact and conclusions of law hitherto entered. Either party may offer additional evidence to supplement such findings and conclusions on the issues of (1) enemy status; (2) enemy taint; and (3) the value of intervener's severable interest. No other evidence may be introduced.
The Court will grant intervener plaintiff's motion for an order directing the issuance of letters rogatory to take certain depositions upon oral examination, provided that within thirty days security shall be given for all costs and charges, and that the taking of the depositions should be completed on or before the fifteenth day of October, 1954.
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