« ForrigeFortsett »
“Sec. 3006. Persons desiring to end any controversy, whether there be a suit pending therefor or not, may submit the same to arbitration, and agree that such submission may be entered of record in any court. Upon proof of Such agreement out of court, or by consent of the parties given in court, in person or by counsel, it shall be entered in the proceedings of such court; and thereupon a rule shall be made, that the parties shall submit to the award which shall have been made in pursuance of such agreement.” The other class of awards is the common-law submission in pais, to which class the award in this case belongs. Counsel for the plaintiffs have cited in support of their contention several cases decided in other states, especially Bradshaw v. Insurance Co., 137 N. Y. 137, 32 N. E. 1055, and Herndon v. Insurance Co., 14 S. E. 742, decided by the supreme court of North Carolina. In both of these states the common-law system of pleading has been superseded by what is generally termed the “Code Procedure,” blending the common-law and equity in one system of practice. As we well know, this innovation on the respective systems of procedure has never been made in Virginia, and the distinction between the two systems has been more closely adhered to in this state than in any other in the Union. The mode of procedure in the two states referred to, no doubt, permits the integrity of an award like the one in this case to be inquired into in an action at law; but the court must determine the question before it in accordance with the common-law system of pleading as we find it in Virginia, and ascertain whether, in accordance with that system, the award in this case can be set aside and annulled in this action. Mr. Minor, in the fourth volume of his Institutes (page 152), gives three grounds for setting aside an award; namely, improper conduct of the arbitrators, improper conduct of the parties, and objections to the award itself, apparent on its face. Under these general heads, with more or less specific and particular details, the subject is generally treated. At page 153 of the same volume, under the head of “Relief against Erroneous Award in Case of Submission in Pais,” he says: “Relief against an erroneous award upon a submission in pais is to be had in equity alone, and there only upon the reasons stated under the preceding head.” 2 Story, Eq. Jur. § 1452. Miller v. Kennedy, 3 Rand. (Va.) 2, was an action on an award made upon a submission in pais. The court said:
“In such cases it is Well established that in an action on the award, or on a bond for performing the award, the plaintiff cannot be required to prove anything more than the execution of the award, according to the submission; and that the defendant in such actions cannot avail himself, in his defense, of Want of notice, corruption, or partiality in the arbitrators, or of any other extrinsic circumstance whatever. The defendant's only redress in such cases is a resort to a court of equity.”
In Barton's Law Practice (volume 1, p. 587) it is said: “When, too, the submission to arbitrators and the award are in pais, there is no remedy against the aWard at law, and resort must be had to a court of equity.” Other authorities to the same effect might be cited, but these will settle the question. Evidence to impeach the award is not admissible in this action. In this forum the award is binding on the parties, and no recovery can be had in this action beyond the amount therein ascertained.
On Motion to Remand.
After the court had rendered the foregoing decision in this case the counsel for the plaintiffs moved the court to remand the case into the state court from which it had been removed into this court. The court overruled the motion, for reasons stated in writing as follows: The plaintiffs move the court to remand this case to the corporation court of the city of Lynchburgh, Va., from which it was removed into this court, for the reason that the petition filed in the state court for the removal of the case into this court does not show that this court has jurisdiction of this case; that it does not show that the defendant company is a citizen or subject of a foreign state. The allegation in the petition as to the citizenship of the defendant company is as follows: “That your petitioner, the Scottish Union and National Insurance Company, resided at the time of the commencement of this action in the city of Edinburgh, Scotland, with its United States branch at Hartford, Conn., and was and is a nonresident of the state of Virginia; and said Scottish Union and National Insurance Company was at the commencement of this action, and
still is, a citizen of Scotland, being a company duly chartered and incorporated under the laws of Great Britain.”
Counsel for the plaintiffs contend that this statement is not sufficient to confer jurisdiction on this court; that it is not sufficient to show that the defendant company is a citizen or subject of a foreign country. Counsel contend that no person. whether natural or artificial, can be a citizen of Scotland; that Scotland is not a “foreign country” in the sense in which that term is used in the federal constitution and statutes; that a resident of Scotland may be a citizen of Great Britain; that the failure of the defendant company to allege in its petition that it is a citizen or subject of Great Britain is a failure to comply with the requirements of the statute; and that it is the duty of the court to stop proceedings in this case whenever this is shown, and to remand it to the state court.
Waiving the discussion as to whether the allegation that the defendant company is a citizen of Scotland is sufficient to show the jurisdiction of this court, we will consider the sufficiency, for this purpose, of the allegation that the defendant company “is a company duly chartered and incorporated under the laws of Great Britain.”
In Steamship Co. v. Tugman, 106 U. S. 118, 1 Sup. Ct. 58, Mr. Justice Harlan, speaking for the court, said:
“A corporation of a foreign state is, for purposes of jurisdiction, to be deemed constructively a citizen or subject of such state.”
Wilson v. Telegraph Co., 34 Fed. 561, was an action brought in a state court of California by a citizen of that state against the Western Union Telegraph Company, defendant. The case was removed into the United States court, and, on a motion to remand it to the state court, Justice Field, speaking for the Court, denied
the motion, and said:
“The plaintiff is a citizen of the state of California, and the defendant is a corporation created under the laws of New York, and is therefore to be deemed, for the purposes of jurisdiction, in the federal courts, a citizen of that State.” In Ayers v. Watson, 113 U. S. 595, 5 Sup. Ct. 641, Justice Bradley said: - “We see no reason, for example, why the other party may not Waive * * * informalities in the petition, provided it states the jurisdictional facts; and, if these are not properly stated, there is no good reason why an amendment should not be allowed, so that they may be properly Stated.” The court is of opinion that under the decisions in Steamship Co. v. Tugman, supra, and in Wilson v. Telegraph Co., Supra, this court has jurisdiction of this case, and must retain it; that the statement in the petition that the defendant company “is a company duly chartered and incorporated under the laws of Great Britain” is such a statement of the jurisdictional facts; and the further fact that the policy on which the action is founded, and which is a part of the record in this case, names the defendant company as “the Scottish Union and National Insurance Company, incorporated by special act of parliament,” conclusively shows, by presumption, if not expressly, that the defendant company is a citizen or subject of a foreign state, and, as such, has a right to invoke the jurisdiction of a federal court. And if the jurisdictional facts really exist, which is not denied, but are not properly stated in the petition, it might, according to the views of Justice Bradley in Ayers v. Watson, supra, be amended so as to properly state the jurisdictional facts; for it is not the statement made in the petition to the state court which gives the federal court jurisdiction, but that jurisdiction is conferred by the constitution and the act of congress, because of the jurisdictional facts as they really exist. But, under the authority of the cases cited above, the court holds that the citizenship of the defendant company is sufficiently stated in the petition to give this court jurisdiction; and it is not necessary to amend the petition at this late stage of the case, after the pleadings are made up, and a jury selected and sworn to try the issue joined. The motion to remand the case to the State court must be overruled.
BOARD OF COM’RS OF KEARNEY COUNTY v. McMASTER.
1. PRACTICE—QUESTIONS-REVIEWABLE ON ERROR—GENERAL FINDING. Where a court before which a case is tried without a jury makes a general finding, no errors in giving or refusing instructions asked for With a view to controlling such general finding can be reviewed on error. Searcy Co. v. Thompson, 13 C. C. A. 349, 66 Fed. 92, followed. 2. FEDERAL COURTS-JURISDICTION–CITIZENSHIP. The federal courts have jurisdiction of an action on county warrants made payable to certain payees Or bearer, where the assignee of such Warrants, Who brings the action, is a nonresident of the State in Which the county is situated, whether the payees named in the Warrants Were citizens of Such state or not.
8. PLEADING—WAIVING EFFECT OF DEMURRER. Where a demurrer to several separate defenses, contained in an answer, has been Sustained, a Stipulation that Some of Such defenses Shall “remain as a part of Said anSWer” cures any error that may have been committed in Sustaining the demurrer to such parts of the answer.
4. COUNTY COMMISSIONERS–PowRRs—KANSAS STATUTE. Acting county commissioners appointed by the governor, pursuant to 1 Gen. St. Kan. par. 1577, have power to issue county warrants for the ordinary expenses of the county government. Coffin v. Kearney Co., 12 U. S. App. 562, 6 C. C. A. 288, and 57 Fed. 137, distinguished.
In Error to the Circuit Court of the United States for the District of Kansas.
Samuel R. Peters (M. G. Kelso, Joseph W. Ady, and John C. Nicholson, on the brief), for plaintiff in error. Frederic D. Fuller filed brief for defendant in error.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
THAYER, Circuit Judge. This was a suit by J. S. McMaster, the defendant in error, against the plaintiff in error, the board of county commissioners of Kearney county, Kan., on 19 county warrants theretofore issued by the county which had been purchased by, and had been assigned to, McMaster by the original payees. The case was tried before the court on a written stipulation waiving a jury, and the finding by the circuit court in favor of the plaintiff was general, and not special. For this reason no errors assigned relative to the giving or refusal of instructions, which were asked with a view of controlling the general finding, are before us for review. Searcy Co. v. Thompson, 13 C. C. A. 349, 66 Fed. 92, recently decided by this court, and cases there cited.
The first question presented by the record which is open for review is whether the circuit court had jurisdiction of the case. The petition was demurred to on the ground that “the court had no jurisdiction of the subject-matter of the action,” and the demurrer was overruled. It goes without saying that a demurrer based on such ground is not waived by subsequently pleading to the merits, wherefore it becomes necessary to decide whether this point was well taken. The petition showed that the plaintiff was a citizen and resident of the state of New York, and that the defendant was a municipal corporation created by the state of Kansas. The several causes of action sued upon were county warrants issued by the county, which had been assigned to the plaintiff, but they were made payable to the several payees therein named or bearer. Under these circumstances, it matters not, we think, whether the payees named in the warrants were or were not citizens of Kansas at the date of the several assignments. It has been held that, under the provisions of the act of March 3, 1887, as amended by the act of August 13, 1888, to correct the enrollment of the act of March 3, 1887 (25 Stat. 433, c. 866), the federal courts have jurisdiction of a suit by an assignee of such choses in action against the county issuing the same, when the assignee is a nonresident of the state; and this court has heretofore acted on the assumption, without, however, expressly deciding the point, that such cases are properly Within the jurisdiction of the national courts under the act of March 3, 1887, supra. Aylesworth v. Gratiot Co., 43 Fed. 350, 355. See, also, Wilson v. Knox Co., Id. 481; Holmes V. Goldsmith, 147 U. S. 150, 156, 13 Sup. Ct. 288; Thompson v. Searcy Co., 12 U. S. App. 618, 6 C. C. A. 674, and 57 Fed. 1030; Board v. Sherwood, 11 C. C. A. 507, 64 Fed. 103; Capital Bank of St. Paul v. School Dist. No. 26, 11 C. C. A. 514, 63 Fed. 938. It must be held, therefore, that the demurrer to the petition was properly overruled. Another question, which is also presented for review by the record, is whether the circuit court erred in sustaining a demurrer to portions of the defendant’s answer. The demurrer in question was addressed to the first, third, and fourth paragraphs of the pleading, each of which stated a separate defense, and it appears to have been sustained as to all of said defenses, but, by a stipulation filed by counsel before the trial, it was agreed, in substance, that the defenses stated in the answer, other than the defense pleaded in the fourth paragraph thereof, should “remain as a part of said answer, and that all of such allegations so remaining are considered as denied.” The effect of the stipulation, which restored the defenses to the answer, obviously was to cure any error that may have been committed by the court in sustaining the demurrer, except in sustaining it as to the fourth paragraph, which was not thus restored by the stipulation. The fourth paragraph of the answer pleaded, in substance, that Kearney county had no power to issue the warrants in suit, because, at the time they were issued, to wit, July 2, 1888, it was a newly-organized county, whose affairs were then being administered by a board of county commissioners and a county clerk appointed by the governor of the state pursuant to the provisions of a law of Kansas relative to the organization of new counties. 1 Gen. St. Kan. 1889, par. 1577. It was alleged that, because no election for county or township officers was held in Kearney county until July 21, 1888, the county was not organized for the purpose of issuing warrants for any purpose whatever; and that the acting board of county commissioners and the county clerk theretofore appointed by the governor under the provisions of the statute aforesaid, who issued the warrants in suit, acted wholly without authority of law in so doing. By sustaining the demurrer, the circuit court necessarily refused to adopt that construction of the statute. The act providing for the organization of new counties was under consideration by this court in the case of Coffin V. Kearney Co., 12 U. S. App. 562, 6 C. C. A. 288, and 57 Fed. 137. We held in that case that, by the express provisions of said act, the county was prohibited from issuing bonds, except for the erection and furnishing of schoolhouses, until one year after the organization of the county under the terms of the act; that is to say, until one year after the appointment by the governor of a county clerk and a board of county commissioners. But we fail to find any provision in the statute which thus restricts the power of the commissioners of a newly-organized county in the matter of issuing county warrants for the ordinary expenses of the county government. It must have been intended, we think, that the commissioners appointed by the governor should have the same power to administer the affairs of the county that is given to other boards of