« ForrigeFortsett »
The earlier opinions of the supreme court rassed upon the question, they have generalof Minnesota, to the effect that the statute ly held that any state law upon the subject in question was a bankrupt act, were fol- of assignments, which limits the distribution lowed by the supreme court of Wisconsin in of the debtor's property to such of his creditMcClure v. Campbell, 71 Wis. 350, in which ors as shall file releases of their demands, it was held that the assignment could have is to all intents and purposes an insolvent no legal operation out of the state in which law; that a title to personal property acthe proceedings were had, and that the deci- quired under such laws will not be recog. sion of the supreme court of Minnesota that nized in another state, when it comes in conthe act of 1881 was a bankrupt act was bind- flict with the rights of creditors pursuing ing. The contest was between the assignee their remedy there against the property of of the insolvent debtor and a creditor who the debtor, though the proceedings were inhad attached the property of the insolvent stituted subsequent to and with notice of in Wisconsin. The court held that the the assignment in insolvency. The provision plaintiff, the assignee, took no title to such of the statute in question, requiring a release property, and was not entitled to its pro- from the creditors in order to participate in ceeds. In delivering the opinion the court the distribution of the estate, operates as a said: “We think the question is not affect- discharge of the insolvent from his debts to ed by the fact that the property, when seized, such creditors—a discharge as complete as was in possession of the assignee, or that the is possible under a bankrupt law. An as. attaching creditor is a resident of the state signment containing a provision of this kind in which the insolvency or bankruptcy pro- would have been in many, perhaps, in most, ceedings were had.
While some of of the states void at common law. Grover them” (the cases) "may, under especial cir. v. Wakeman, 11 Wend. 187 [25 Am. Dec. cumstances, extend the rule of comity to such 624]; Ingraham* v. Wheeler, 6 Conn. 277;[634) a case, and thus give an extraterritorial ef. Atkinson v. Jordan, 5 Ohio, 293; Burrill on fect to somewhat similar assignments, we Assignments, 232 to 256. As was said in are satisfied that the great weight of au- Conkling v. Carson, 11 Ill. 508: “A debtor thorities is the cther way. The rule in this in failing circumstances has an undoubted country is, we think, that assignments by right to prefer one creditor to another, and operation of law in bankruptcy or insolven- to provide for a preference by assigning his cy proceedings, in which debts may be com- effects; but he is not permitted to say to pulsorily discharged without full payment any of his creditors that they shall not parthereof, can have no local operation out of ticipate in his present estate, unless they rethe state in which such proceedings were iease all right to satisfy the residue of their had.”
debts out of his future acquisitions.” In In Fransen v. Hutchinson [94 Iowa, 95), Brashear v. West, 7 Pet. 608 (8: 801), an as62 N. W. 695, the supreme court of Iowa had signment containing a provision of this kind this statute of Minnesota under considera- was upheld with apparent reluctance solely tion, and held that as the creditors received upon the ground that in Pennsylvania, where no benefit under the assignment, unless they the assignment was made, it had been treatfirst filed a release of all claims other than cd as valid. If the assignment contain this 33]such as might be paid under the*assignment, feature, the fact that it is executed volun.
it would not be enforced in Iowa. It was tarily and not in invitum is not a controlling said that the assignment, which was that of circumstance. In some states a foreign asan insurance company, was invalid, and that signee under a statutory assignment, good by in an action by the assignee for premiums the law of the state where made, may be percollected by the defendants, who were initted to come into such state and take agents of the company, the latter could offset possession of the property of the assignor claims for unearned premiums held by poli- there found, and to withdraw it from the cy holders at the time of the assignment and jurisdiction of that state in the absence of by them assigned to defendants after the as- any objection thereto by the local creditors signment to plaintiffs.
of the assignor; but in such case the as. Notwithstanding the two later cases in signee takes the property subject to the Minnesota above cited, we are satisfied that equity of attaching creditors, and to the rem
supreme court of that state did not in- edies provided by the law of the state where tend to overrule the prior decisions to the such property is found. effect that the act was substantially a bank- A somewhat similar statute of Wisconsin rupt or insolvent law. It is true that in was held to be an insolvent law in Barth v. these cases a broader effect was given to this Backus, 140 N. Y. 230 [23 L. R. A. 47], and act with respect to property in other states an assignment under such statute treated as than is ordinarily given to statutory assign- ineffectual to transfer the title of the insolments, though voluntary in form. But the vent to property in New York, as against an court was speaking of its power over its own attaching creditor there, though such creditcitizens, who had sought to obtain an ad- or was a resident of Wisconsin. A like con. vantage over the general creditors of the instruction was given to the same statute of solvent by seizing his property in another Wisconsin in Townsend v. Coxe, 151 III. 62.
no intimation that the It was said of this statute (and the same may prior cases were intended to be overruled, be said of the statute under consideration), nor did the decis
of the later cases re- “It is manifest fro ese provisions that a quire that they should be.
creditor of an insolvent debtor in Wisconsin, So far as the courts of other states have who makes a voluntary assignment, valid
state. There wils
Mr. John S. Miller, for appellant, in op- / was made final by the act of March 3, 1891, position to motion :
this appeal must be dismissed; and it was so This appeal lies as of right under cl. 3, made final if the jurisdiction of the circui: § 6, of the judiciary act of March 3, 1891. court depended entirely on diverse citizen
Wallace v. Lawrence, 1 Wash. 503; Jack- ship.
citizens of different states, or between citaThe equitable title to real interests, as zens of a state and aliens; and, by reason of well as the title to personal property and the cause of action, "in cases arising under equitable interests, passes to the receiver, the Constitution or laws of the United and in suits in equity by the receiver no States, or treaties made or which shall be assignment is necessary. The order of the made under their authority," as, for instance, court is the effective thing.
suits arising under the patent or copyright Mann v. Pentz, 2 Sandf. Ch. 257; Iddings laws of the United States. Press Publishing v. Bruen, 4 Sandf. Ch. 417; Albany City Company v. Monroe, 164 U. 8. 105 [41: Bank v. Schermerhorn, Clarke, Ch. 298; Por- 367): ter v. Williams, 9 N. Y. 142, 59 Am. Dec. Diversity of citizenship confers jurisdic519; Atty. Gen. v. Atlantic Mut. L. Ins. Co. tion, irrespective of the cause of action. But 100 N. Y. 282.
if the cause of action arises under *the Con-(577) The jurisdiction in this case was not de- stitution, or laws, or treaties, of the United pendent entirely on diverse citizenship. States, then the jurisdiction of the circuit
Cohen v. Virginia, 6 Wheat. 264, 5 L. ed. court may be maintained irrespective of cit.
diction of this suit on the ground of divers. This suit by a receiver of a Federal court ity of citizenship, not only because that fact is a case arising under the laws of the United existed in respect of complainant and defendStates.
ants, but because the suit was ancillary to Stuart v. Boulware, 133 U. S. 78, 33 L. those in which the receiver was appointed. ed. 568; Union Bank v. Kansas City Bank, When an action or suit is commenced by a re136 U. S. 223, 34 L. ed. 341; Booth v. Clark, ceiver, appointed by a circuit court, to ac17 How. 322, 15 L. ed. 164; Davis v. Gray, complish the ends sought and directed by the 16 Wall. 203, 21 L. ed. 447 ; Texas & P. Ř. suit in which the appointment was made, Co. v. Cor, 145 U. S. 593, 36 L. ed. 829; such action or suit is regarded as ancillary Buck v. Collath, 3 Wall. 334, 18 L. ed. 257; so far as the jurisdiction of the circuit court Feibelman v. Packard, 109 U. S. 421, 27 L. as a court of the United States is concerned; ed. 984; Bock v. Perkins, 139 U. S. 628, 35 and we have repeatedly held that jurisdiction L. ed. 314; Keihl v. South Bend, 44 U. S. of these subordinate actions or suits is to be App. 687, 76 Fed. Rep. 921, 22 C. C. A. 618, attributed to the jurisdiction on which the 36 L. R. A. 228 ; Jewett r. Whitcomb, 69 Fed. main suit rested; and hence that where jurisRep. 417; Cooke v. Avery, 147 U. S. 375, 37 diction of the main suit is predicated on diL. ed. 209; Morgan's L. & T. R. & 8. S. Co.versity of citizenship, and the decree therein v. Texas C. R. Čo. 137 U. S. 171, 34 L. ed. is, therefore, made final in the circuit court 625; Benjamin v. New Orleans, 169 U. S. of appeals, the judgments and decrees in the 161, 42 L. ed. 700.
ancillary litigation are also final. Rouse v. The orders appointing complainant receiv. Letcher, 156 U. S. 47 [39 : 341); Gregory v. er and authorizing him to bring this suit Van Ee, 160 U. S. 643 [40: 566); Carey v. "were entered, and all action of the court Houston & T. C. Railway Company, 161 U. S. in the premises taken, by virtue of judicial | 115 [40: 638). It is true that Rouse v. Letcher power possessed and exercised under the and Gregory v. Van Ee were proceedings on Constitution and laws of the United States.” intervention, but Carey v. Houston de T. C.
Teras & P. R. Co. v. Cox, 145 U. S. 593, 36 Railway Company arose on an original bill in L. ed. 829; White v. Ewing, 31 U. S. App. the nature of a bill of review. In that case 178, 66 Fed. Rep. 2, 13 C. Č. A. 276, 159 U. we took occasion to quote from the opinion S. 36, 40 L. ed. 67 ; Price v. Abbott, 17 Fed. of Mr. Justice Miller in Milwaukee & MinRep. 506; Armstrong v. Trautman, 36 Fed. nesota R. Company v. Milwaukee & St. Paul Rep. 275.
R. Company, 2 Wall. 609 (17: 886), in which The complainant, receiver herein, is as the distinction is pointed out between supmuch an officer of the court under and by plemental and ancillary, and independent virtue of the Constitution and laws of the and original, proceedings, in the sense of the United States as are the receivers of national rules of equity pleading, and such proceedbanks.
ings "in the sense which this court has sane Texas & P. R. Co. v. Cox, 145 U. S. 593, tioned with reference to the line which di36 L. ed. 829; McVulta v. Lochridge, 141 U. vides the jurisdiction of the Federal courts S. 327, 35 L. ed. 796; Tennessee v. Union & from that of the state courts." Krippendorf P. Bank, 152 U. S. 454, 38 L. ed. 511. v. Hyde, 110 U. S. 276 (28: 145); Pacific
Railway Co. v. Missouri Pacific Railway Co. (876) "Mr. Chief Justice Fuller delivered the 111 U. S. 505 [28: 498), and other cases were opinion of the court:
cited the bill held to be ancillary to the suit If the decree of the circuit court of appeals' the decree in which was attacked; and the
business. The legislative charter provided | whatsoever so long as said tax shall be paid that the corporation should exist for a period during the corporate existence of such
of thirty years from the date of the act, and tanks.
day of January in each year the bank should ceeding authorized by section 4 of this act
“Sec. 6. This act shall be subject to the
shall fail or refuse to pay the tax imposed by "Sec. 1. That all charters and grants of or this act, or shall fail or refuse to *make the [639) to corporations, or amendments thereof, and consent and agreement as prescribed in section all other statutes, shall be subject to amend-4, the shares of stock of such bank, institument or repeal at the will of the legislature, tion, or corporation, and its surplus, undiunless a contrary, intent be therein plainly vided accumulations and undivided profits, expressed: Provided, That whilst privi- shall be assessed as directed by section leges and franchises so granted may be 2 of this act, and the taxes-state, changed or repealed, no amendment or repeal county, and municipal—shall be imposed, shall impair other rights previously vested. levied, and collected upon theassessed shares,
surplus, undivided profits, undivided accu. "Sec. 3. That the provisions of this act mulations, as is imposed on the assessed taxshall only apply to charters and acts of in. able property in the hands of individuals: corporations to be granted hereafter; and Provided, That nothing herein contained that this act shall take effect from its pas shall be construed as exempting from taxa. sage.”
tion for county or municipal purposes any It would seem that from the date of its real estate or building owned and used by creation until the year 1886 the bank was said banks or corporations for conducting called upon to pay only the taxes provided in their business, but the same may be taxed for the seventh section of its charter. In 1886 county and municipal purposes as other real (Session Acts of Kentucky 1885–6, pp. 144 estate is taxed.” to 147; Id. 201) the legislature of Kentucky The Citizens' Savings Bank accepted the 38]?dopted what is designated in the *briefs of Hewitt act in the mode provided, and therecounsel as the Hewitt act, containing the after paid the tax specified therein. following provisions as to the taxation of In 1891 Kentucky adopted a new Constitu. banks:
tion, which contained the following: "Sec. ). That shares of stock in state and “Sec. 174. All property, whether owned by national banks, and other institutions of loan natural persons or corporations, shall be cr discount, and in all corporations required taxed in proportion to its value, unless exby law to be taxed on their capital stock, empted by this Constitution; and all corposhall be taxed 75 cents on each share there- rate property shall pay the same rate of taxof, equal to $100, or on each $100 of stock ation paid by individual property. Nothing therein owned by individuals, corporations, in this Constitution shall be construed to or societies, and said banks, institutions, and prevent the general assembly from providing corporations shall, in addition, pay upon for taxation based on income, licenses, or each $100 of so much of their surplus, undi- franchises." vided surplus, undivided profits, or undi- The state of Kentucky, in 1892, enacted a vided accumulations as exceeds an amount law providing, among other things, for the equal to 10 per cent of their capital stock, assessment and taxation by the state, counwhich shall be in full of all tax, state, coun- ties, and municipalities, of banking and ty, and municipal.
other corporations. This law was in abso
lute conflict with the Hewitt act, and by "Sec. 4. That each of said banks, institu- special provision as well as by necessary tions, and corporations, by its corporate au- legal intendment operated, if the Constituthority, with the consent of a majority in tion had not already done so, to repeal the interest of a quorum of its stockholders, at system of bank taxation established by the a regular or called meeting thereof, may give Hewitt act. Without detailing the scheme its consent to the levying of said tax, and of taxation created by the law of 1892, it agree to pay the same as herein provided, suffices to say that it organized a state and to waive and release all right under the board whose duty it was to ascertain and fix act of Congress, or under the charters of the the value of what was termed the franchises state banks, to a different mode or smaller of banks and other corporations, referred to rate of taxation, which consent or agreement in the law, and upon the amount so fixed the to and with the state of Kentucky shall be general state tax was levied. It was besides evidenced by writing under the seal of such niade *the duty of the board to certify its[640) bank and delivered to the governor of this valuation of the property or franchises to commonwealth; and upon such agreement the proper county or municipality in which and consent being delivered, and in consider the corporation was located, so that the sum ation thereof, such bank and its shares of of this assessment might become the basis stock shall be exempt from all other taxation' upon which the local taxes should be laid.
court of the United States does not, in a suit GUARANTEE COMPANY OF NORTE upon that judgment, raise a question under
AMERICA, Petitioner, the laws of the United States within the meaning of the act of March 3, 1875.” That MECHANICS' SAVINGS BANK & TRUST was a writ of error to the supreme court of
COMPANY, for the Use of J. J. Pryor, Asthe state of New York to review a judgment signee. of that court denying a motion for the removal of the cause to the United States cir
(See S. C. Reporter's ed. 582-586.) cuit court. Mr. Justice Bradley delivered the opinion, and, after pointing out that the
Decree, when not final. alleged grounds of removal were insufficient, remarked: “It is suggested, however, that A decree which determines that none of the de a suit on a judgment recovered in a United fenses of a guaranty company are good in States court is necessarily a suit arising un.
law, and that it is liable on its bonds for sucb der the laws of the United States, as much
as may thereafter be found due after
?rediting the amounts that may be realized so as if the plaintiff or defendant were a cor
from certain assets, is not final for the pur (581]poration of the United States; and hence
poses of an appeal. that such a suit is removable under the act of March 3, 1875. It is observable that the
[No. 224.] removal of the cause was not claimed on any such broad ground as this; but, so far as the Argued March 16, 1899. Decided April 3, character of the case was concerned, only on
1899. the ground that the defendant had a defense under Rev. Stat. § 739, specifying what the WRIT OF CERTIORARI to the United that that ground of removal, as stated in the Sixth Circuit to review a decree of that petition, was insufficient. But conceding court affirming a decree of the Circuit Court that the defendant is now entitled to take its of the United States for the Middle District position on the broader ground referred to, of Tennessee in an action brought by the Meis it tenable and sufficient for the purpose ? chanics’ Savings Bank & Trust Company for What is a judgment, but a security of record the use of J. J. Pryor, Assignee, against the showing a debt due from one person to an- Guarantee Company of North America upon other? It is as much a mere security as a bonds executed by that company conditioned treasury note, or a bond of the United States. for the faithful performance of the duties of 16 A brings an action against B, trover or cashier and also of teller and collector of the otherwise, for the withholding of such se said Savings Bank by one Schardt. The de curities, it is not therefore a case arising un- cree of the Circuit Court granted the relief der the laws of the United States, although prayed for by the plaintiff, and fixed the the whole value of the securities depends up: liability of the defendant at $32,310, and on the fact of their being the obligations of decreed that all collections on assets or col. the United States. So if A have title to laterals turned over by Schardt to the bank land by patent of the United States and should be applied on said amounts. Decree brings an action against B for trespass or of the Circuit Court of Appeals is reversed waste, committed by cutting timber, or by for want of jurisdiction, and the cause is mining and carrying away precious ores, or remanded, with directions to dismiss the apthe like, it is not therefore a case arising un. peal prosecuted to that court, and for such der the laws of the United States. It is further proceedings in the Circuit Court as simply the case of an ordinary right of
may be consistent with law.
See same case below, 68 Fed. Rep. 459,
Messrs. William L. Granbery and Al-
The plaintiff in this suit-originally Without pursuing the subject fur- brought in the chancery court at Nashville, ther, we conclude with expressing our opin. Tennessee, and subsequently removed into the ion that this last ground of removal, like circuit court of the United States for the those already considered, was insufficient.” middle district of Tennessee is the Me
In Cooke v. Avery, 147 U. S. 380 (37: 212), chanics' Savings Bank & Trust Company, a jurisdiction was sustained on the ground Tennessee corporation suing, to the use of that the plaintiff's title was derived through James J. Pryor, assignee, under a general as. the enforcement of a lien, the validity of signment of all the assets, rights, and cred.
which depended on the laws of the United its of that company in trust for the benefit States and the rules of the circuit *court, and of creditors.
their construction and application were di- The principal defendant is the Guarantee
Company of North America, a corporation
created under the laws of the Dominion of
173 0. S.
(583)1993, Schardt was *teller and collector and said sums from the end of his respectivo
from the latter date until his death was cash- terms.
"The court, after considering the various
“That complainant have judgment on the The bill alleges that while acting as teller teller's and collector's bond for the sum of ten and collector of the plaintiff company thousand dollars principal and the further Schardt fraudulently embezzled of its moneys sum of seven hundred and seventy dollars, the sum of $78,956.11, of which $50,856.77 being interest
at six per
cent from was embezzled during the year ending Janu- 9th of April, 1894, to July 1, 1895; ary 1, 1893; and that during the period cov- and that complainant have judgment on the ered by the bond insuring his fidelity as cash cashier's bond against defendant Guarantee ier he fraudulently appropriated of the plain. Company for the sum of twenty thousand tiff's moneys the sum of $22,817.30.
dollars principal and the further sum of $1,The bill also alleged that a few days before 540.00 interest thereon from April 9, 1894, his death Schardt assigned to the plaintiff to July 1, 1895, making in the aggregate of company, as additional indemnity for the principal and interest on both bonds the sum losses he had brought upon it, certain poli. of thirty-two thousand three hundred and ten cies on his life amounting to $80,000; that dollars ($32,310.00) with interest thereon upon those policies $20,000 had been col. until paid, and the costs of this suit. lected, and the residue was in dispute; and “And the court orders and decrees that the[585) that Schardt did not give any direction as to liability of the defendant, the Guarantee which of the bonds insuring his fidelity the Company, is secondary to that of John insurance moneys when collected should be Schardt's estate; and that the bank or its asapplied.
signee shall account for all collections real. The Guarantee Company in its answer in- ized on assets or collaterals turned over to sisted that by reason of the violation of the the bank by said Schardt to reimburse it terms and conditions upon which the bonds against his shortage, which it has collected, in question were issued it was not liable to or with due diligence may collect hereafter; the plaintiff in any sum.
and for his fitness, and for convenience, H. By the decree in the circuit court it was M. Doak is appointed master commissioner adjudged that the amount embezzled by to report the same to the next term of this Schardt during the years 1890 and 1891 had court; and the court orders that the same been paid out of the assets and collections be applied to the shortage of said Schardt in transferred by him to the bank just before the order in which the same occurred, and in his death; that his embezzlements from and the meantime no execution will issue against after September 1, 1890, and up to January defendants for the same, but only for the 1, 1893, amounted, principal and interest, to costs; and the court orders that this cause $52,736.17, while his embezzlements during may be continued upon the docket of this his term as cashier amounted, principal and court, for the purpose only of making any
interest, to $23,128.69; and that the total orders necessary to apply all collections from (584]amount, principal *and interest, of all his em- the assets of Schardt, held as collateral, in
bezzlements while occupying the two posi- exoneration, to that extent, of the defendant tions of teller and cashier, was $107,223.36. company and of substituting the defendant The decree continued :
to the rights of the bank, in case the recovery "It appearing that Schardt had assigned herein is collected or paid and any of said asto the bank to indemnify it against loss, two sets remain above the amount necessary to lots of land assigned to J. B. Richardson and satisfy the shortage. But the case is re life insurance policies amounting to $80,000, tained for no other purpose, and the decree some of which policies have been paid to the against defendant company is final as fixing assignee without suit, and others are now in its liability on the bonds to make good the litigation in this court, or pending on appeal shortage, whatever that may be. This de or writ of error to the appellate court of this cree is entered in lieu of one entered at a circuit, held at Cincinnati, the court ad former day of the term and the decree for judges upon inspection of said guaranty merly entered is thereby vacated.” 68 Fed. bonds, their terms and various conditions, Rep. 459. and the proof submitted, that the bank has Upon appeal prosecuted by the Guarantee complied with the same and all its undertak. Company to the circuit court of appeals the ings thereunder, substantially; and that said decree was affirmed. 54 U. S. App. 108. The Schardt embezzled and fraudulently appro- case is here upon writ of certiorari. priated the moneys of the bank while he filled The circuit court of appeals was without said two positions, to the amounts named; jurisdiction to review the decree of the cirand that interest should be calculated upon 'cuit court because that decree was not a final