« ForrigeFortsett »
stockholder the duty, after he has sold and assigned his stock, of seeing to it that his name is removed from the books of the bank. In the case at bar the defendant would have had no difficulty in doing this, but in many cases, where the certificates are assigned in blank and the stockholder does not know who the purchaser is, it might become an exceedingly arduous and complicated undertaking. Nevertheless, we are constrained to hold, under the authorities which must govern our action, that the court below was right in directing a verdict for the plaintiff. Harsh as the rule may seem, it is clear that it is necessary for the speedy and efficient winding up by the Comptroller of the affairs of insolvent banks. He cannot enter upon an investigation and hear proofs pro and con to determine who are the stockholders, and the reasons are manifest and cogent for holding that, in making his assessment, he is justified in relying upon statements found in books of the bank. They are at least prima facie evidence. There was nothing to indicate to the Comptroller that the defendant had parted with his stock and the defendant, with_full knowledge of the facts, not only failed to repudiate the action of Reynolds in having the shares taken in his name, but took no steps to have them registered in the name of the true owner. He cannot now, as against creditors, be permitted to dispute his liability.
In Keyser v. Hitz, 133 U. S. 138, 149, 10 Sup. Ct. 290, 294, 33 L. Ed. 531, the court, says:
“We must not be understood as saying that the mere transfer of the stocks on the books of the bank, to the name of the defendant, imposed upon her the individual liability attached by law to the position of shareholder in a national banking association. If the transfers were, in fact, without her knowledge and consent, and she was not informed of what was so donenothing more appearing-she would not be held to have assumed or incurred liability for the debts, contracts and engagements of the bank. But if, after the transfers, she joined in the application to convert the savings bank into a national bank, or in any other mode approved, ratified or acquiesced in such transfers, or accepted any of the benefits arising from the ownership of the stock thus put in her name on the books of the bank, she was liable to be treated as a shareholder, with such responsibility as the law imposes upon the shareholders of national banks."
In Finn v. Brown, 142 U. S. 56, 12 Sup. Ct. 136, 35 L. Ed. 936, 50 shares of stock were transferred to the defendant without his knowledge and consent. The court, at page 67 of 142 U. S. and page 139 of 12 Sup. Ct., said:
“He is presumed to be the owner of the stock when his name appears upon the books of the bank as such owner and the burden of proof is upon him to show that he is in fact not the owner.”
The court held that being acting cashier and director of the bank he was presumed to know what the list of shareholders, required by law to be kept, contained; and, at page 70 of 142 U. S. and page 140 of 12 Sup. Ct., the court says:
“No general rule can be laid down as to what will constitute, in any particular case, an acceptance of the transfer of stock or the equivalent thereof, in a case where the transferee is in fact ignorant of the fact of transfer ; but each case must be decided on its own facts.
The defendant, as vice-president and acting cashier of the bank, had the power himself to trans fer the 40 shares back to McNany and the 10 shares back to De Walt. He did not do so, but, knowing that the 50 shares had been transferred to his credit and stood in his name upon the books, he suffered the matter to remain in that shape for twenty days, until the doors of the bank were closed."
The judgment against him was affirmed.
See, also, Richmond v. Irons, 121 U. S. 27, 58, Sup. Ct. 788, 30 L. Ed. 864; Matteson v. Dent, 176 U. S. 521, 20 Sup. Ct. 419, 44 L. Ed. 571; Rankin v. Insurance Co., 189 U. S. 242, 23 Sup. Ct. 553, 47 L. Ed. 792; Greene v. Sigua Iron Co., 88 Fed. 207, 215, 31 C. C. A. 458; Davis v. Stevens, 17 Blatchf. 259, Fed. Cas. No. 3,653; Lewis v. Switz (C. C.) 74 Fed. 381. We do not regard the case of Glenn v. Garth, 133 N. Y. 18, 30 N. E. 649, 31 N. E. 344, as in conflict with the views above expressed. Indeed, Judge Finch, in disposing of the motion for a reargument, recognizes the rule for which the receiver here contends. “It is insisted,” he says, “that we have violated the rule that one who authorizes and permits a transfer to himself of shares of stock upon the books of a corporation must be held to be a stockholder, whether in truth the real owner or not, when the rights of corporate creditors are involved, and is equitably estopped from denying the apparent relation. I admit the rule and have nowhere doubted or denied it.” The defendant was released upon the peculiar facts there developed because the transfer to him on the books was a mistake which he immediately repudiated and sought to undo. Here, on the contrary, the defendant acquiesced in the broker's acts and at no time expressed his disapproval.
The judgment is affirmed with costs.
TOWNSEND, Circuit Judge, heard the argument, participated in the consultations, and voted to affirm.
MAXWELL V. FEDERAL GOLD & COPPER CO.
(Circuit Court of Appeals, Eighth Circuit. July 5, 1907.)
1. COURTS-JURISDICTION OF FEDERAL COURTS-CONTROVERSY BETWEEN CITI
ZEN OF STATE AND CITIZEN OF TERRITORY.
Diversity of citizenship between citizens of different states is indispensable to sustain the jurisdiction of a federal court on that ground.
A controversy between a citizen or citizens of a state or states and a citizen or citizens of a territory or territories will not confer jurisdiction upon a national court.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Courts, & 853.
Diverse citizenship as a ground of federal jurisdiction, see notes to Shipp v. Williams, 10 C. C. A. 249 and Mason v. Dullagham, 27 C. C. A.
298.] 2. SAME-TERRITORIAL LAWS NOT LAWS OF UNITED STATES.
The laws enacted by a territorial Legislature, subject to disapproval by Congress, are not laws of the United States, and a suit arising under them, as where a corporation organized under them is a party to the suit, does not arise under the laws of the United States, and a federal court has no jurisdiction on that ground.
[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, $ 820.)
3. SAME-JURISDICTION-LACK OF, FATAL TO GENERAL JUDGMENT FOR DEFEND
Where the court has no jurisdiction, a general judgment for the defendant is erroneous, because it renders the merits of the case res adjudicata. It must be reversed and a judgment of dismissal for want of jurisdiction, or without prejudice, entered.
[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, $ 158.] (Syllabus by the Court.)
In Error to the Circuit Court of the United States for the District of Minnesota.
H. V. Mercer (George P. Wilson, on the brief), for plaintiff in error. M. B. Webber (Edward Lees, on the brief), for defendant in error. Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.
SANBORN, Circuit Judge. This writ of error challenges a judgment for the defendant upon a jury trial in an action brought by Maxwell, a citizen of Minnesota, in the Circuit Court for the District of Minnesota, to recover of the Federal Gold & Copper Company, a corporation organized under the laws of the territory of Arizona, $35,000 damages for the conversion of some of its stock which the plaintiff claimed to own. Upon the opening of the argument in this court attention of counsel for the plaintiff in error was called to the familiar rule that the only diversity of citizenship which confers jurisdiction upon a federal court is diversity between citizens of different states, or between an alien and a citizen of a state, and that diversity of citizenship between citizens of a state and citizens of a territory has no such effect. City of New Orleans v. Winter, 1 Wheat. 91, 94, 4 L. Ed. 44; Barney v. Baltimore City, 6 Wall. 280, 287, 18 L. Ed. 825; Watson v. Bonfils, 116 Fed. 157, 53 C. C. A. 535; Snead v. Sellers, 66 Fed. 729, 15 C. C. A. 631.
But counsel invoke the provisions of section 1891 of the Revised Statutes that "the Constitution and all laws of the United States which are not locally inapplicable shall have the same force and effect within all the organized territories and in every territory hereafter organized as elsewhere within the United States," and argue that, as citizens of the states have the right to the trial of their controversies with citizens of other states in the national courts, the citizens of the territories have the like right, under this statute, to the trial of their controversies with the citizens of the states. But the Constitution and laws of the United States do not grant to citizens of the states the right to the trial of their controversies with citizens of the territories in the federal courts (Act March 3, 1887, c. 373, 24 Stat. 552, and Act Aug. 13, 1888, c. 866, 25 Stat. 433 [U. S. Comp. St. 1901, p. 508), and, as the Constitution and laws have the same effect in the territories as in the states, they fail to confer upon the citizens of the territories this right. In the second place, the right to try the controversy in this case is invoked by a citizen of a state, and not by a citizen of a territory.
Another contention of counsel is that the defendant is a corporation organized under a statute of the territory of Arizona, that the laws of the territories are laws of the United States because they are subject to nullification by Congress (Rev. St. $$ 1850, 1851), , and hence that this case involves the construction of, and arises under, a law of the United States, under the decisions in Union Pac. Ry. Co. v. Myers, 115 U. S. 1, 5 Sup. Ct. 1113, 29 L. Ed. 319; Texas & Pac. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 I.. Ed. 829; U. S. Freehold, Land & Em. Co. v. Gallegos, 89 Fed. 769, 32 C. C. A. 470. But the laws of the territories are not laws of the United States. Ex parte Moran, 75 C. C. A. 396, 405, 144 Fed. 594, 603; Linford v. Ellison, 155 U. S. 503, 508, 15 Sup. Ct. 179, 39 L. Ed. 239; Maricopa & Phenix Railroad v. Arizona, 156 U. S. 347, 351, 15 Sup. Ct. 391, 39 L. Ed. 447. This suit, therefore, did not arise under the Constitution or laws of the United States, it does not involve a controversy between citizens of different states, and the court below had no jurisdiction of it.
The judgment of the Circuit Court, however, is a general judgment for the defendant. It is erroneous, and must be reversed because it renders the issues in the action res adjudicata. The proper judgment is one of dismissal of the action for want of jurisdiction, or without prejudice. Speer v. Board of County Commissioners, 32 C. C. A. 101, 105, 88 Fed. 749, 753; Indian Land & Trust Co. v. Shoenfelt, 68 C. C. A. 196, 199, 135 Fed. 484, 487, and cases there cited.
The judgment below is reversed, and the case is remanded to the court below with directions to dismiss the action for want of jurisdiction.
THE RICHMOND. THE BOSWELL. THE IOWA. THE JAMES W.
ELWELL. THE POWELL.
Nos. 12, 13, 14, 1. COLLISION-MEETING TOWS AND OVERTAKING SCHOONER-FAULT OF TUG.
A double collision at sea, one between a schooner and a barge in tow, and a resulting collision between two other tows, held due solely to the fault of one of the tugs, which, on meeting another tug with two tows, which were being overtaken by a schooner, passed to the port of such tug and tows, although her own tows were sagging in that direction on account of the wind and failed to make sufficient allowance for such sagging, the result being that the schooner was pocketed and compelled in extremis to change her course.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Collision, $ 78.
Overtaking vessels, see note to The Rebecca, 60 C. C. A. 254.] Appeal from the District Court of the United States for the Southern District of New York.
For opinion below, see 143 Fed. 996.
Moen & Kilbreth, for The Richmond.
PER CURIAM. We do not think anything will be gained by rehearsing the contentions of the several parties or by discussing the testimony of the witnesses. In its ultimate analysis the cause presents questions of fact only. Although as to some of the propositions advanced there is a close concurrence between the statements of
of the witnesses, a more careful study of the movements of these eight vessels leads to the conclusion that such concurrence is not entitled to the weight which is sought to be attached to it.
At the base of the whole case there lie two questions: (1) Were or were not the movements of the tugs and tows such as to make the lane of water between them practically a cul-de-sac, dangerous for the schooner to navigate? (2) Did or did not the schooner, after coming in sight of the tows, make a change of course so as to enter into this lane, or did she hold her course, at a safe distance, from the tow she was overtaking, until the converging side of the lane caused by the sagging of the Boswell's barges made it necessary for her to change in order to avoid the latter? (3) And a third question, supplementary to the others, is whether or not the Elwell failed to discover the presence of the Powell until she was so close upon her that her own navigation was thereby seriously interfered with.
Taking the last question first, we are satisfied that the contention made in argument that the mate of the schooner did not discover the Powell till he was within 50 feet of her is a misinterpretation of the answers of the witness. We find nothing in his testimony to qualify his positive statement that he saw her as he was just passing astern of the Dempsey, which would be at the distance of nearly 1,000 feet away. We concur with the district judge that at that time the Elwell "was already pocketed by the tows," and that she was in a position of peril which she herself had not contributed to produce.
As to the second question. We place no reliance upon the statement of the witnesses, even from the schooner, that there was a considerable breadth of water near the place of collision. The circumstance that the Iowa, whose hawser to the Indiana (1020 feet long) did not part, was struck by the Powell about her fore-rigging, shows conclusively that the distance between the Elwell and Powell must have been less than that. We do not credit the estimate of the master of the Iowa that he sheered out of his course 800 feet. His collision with the Powell took place, as the master of the Indiana says, over the latter's quarter. We are satisfied that the estimate of the master of the Powell that the distance between himself and the Indiana when he passed her was 300 or 400 feet is more nearly accurate, and that he passed the Richmond still closer. Indeed, we are inclined strongly to the belief that the Richmond did stop or slow to aid the Powell in making clearance—a point sharply in dispute between the mate of the schooner and the master of the Richmond. But it is not necessary to decide this last point. The lane of water between the tows narrowed from nearly half a mile to a width so small as to make it a perilous task to take the schooner through. Once in the lane, she was practically "pocketed by the tows” as the district judge finds. And we concur in the conclusion that the Boswell was in fault for not sooner taking