83 F. 534 | 6th Cir. | 1897
after stating ike facts, delivered the opinion of tke court.
It will be observed from tke language of tbe plea that the question really made was on the transfer from Whitbeck to Asldey. Notwithstanding this, the plaintiff in error took issue on the plea in abatement. The evidence introduced for the defendant consisted of the depositions of Whitbeck and Ashley, previously taken in the case, in the absence of the issue raised by the plea in abatement and the replication thereto. These depositions were introduced by the defendant with a view to sustain the plea, and William A. Moore was introduced by the plaintiff in error. In tlie discussion of the case at bar in this court, the transfer from the bank to Whitbeck, as well as that from Whitbeck to Ashley, are treated as equally in issue under the plea in abatement, notwithstanding the limited form of the plea, and we have concluded to treat the plea in this broader aspect, as involving the good faith of botli transfers.
Section 5, Acts 1875 (18 Stat. 470), referred to in the former opinion of this court and in the briefs, is as follows:
“That if, in any suit commenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable, under this act the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require and shall make such order as to costs as shall he just.”
In Stanley v. Board, 15 Fed. 483, the court said:
“The demands in suit were first assigned to Mr. C. P. Williams, a citizen of ■this stale. Williams thereafter assigned to tlie plaintiff. In circumstances which would probably require a dismissal of the suit, pursuant to the fifth section of the act of March 3, 1875, were it not for the fact that the court had jurisdiction prior to and irrespective of the. assignment. That the plaintiff’s immediate assignor might have maintained tills action, because tlie controversy is one arising ‘under tlio taws of the United ¡States.’ was directly decided on the former trial, and is res adjudícala in tills court. ’Tlie assignment, was not made for the purpose of ‘creating a case’ within the jurisdiction of the court, for such a case was already in existence. As the court must, in any event, retain jurisdiction, an inquiry into the relations existing between the plaintiff and his assignor can lead to no tangible result. Where a party, who Is entitled to sue in tlie federal courts, transfers his cause of action to another, who has the same right, of what moment is it that the transfer was for an adequate consideration, or was wholly without consideration, so long as the legal title is transferred? The defendant lias no reasonable ground for complaint, and the court, for whose advantage the statute was framed, has not been imposed upon or burdened with an improper or collusive controversy.”
Wliat was thus said is applicable to the (pies lion here presented. In this view, we put aside the transfer from Whitbeck to Ashley, and pretermit any discussion of the testimony relating to that transfer. The question then remains, was the transfer from the bank to Whitbeck a real one, or colorable and fraudulent? It is to be observed that it, has been uniformly held that the fact that the purpose of the transfer was to enable the purchaser or vendee to bring suit, in the courts of the United States does not affect: the question. The eases fully recognize the right to transfer or convey with just such motive as this, provided the conveyance or transfer is a, real one, intended to he final without reservation, and not solely for the purpose of giving jurisdiction. This doctrine was announced in the late case of Manufacturing Co. v. Kelly, 160 U. S. 327, 16 Sup. Ct. 307, in which, previous cases are reviewed. The motive for transfer 'n such cases is to be regarded as a circumstance to be considered in connection with all the other circumstances of the case in determining whether the transfer is real. If, in a given case, the sale or transfer is real, the existence of a motive to confer jurisdiction on the courts of the United States does not invalidate the transfer nor defeat the jurisdiction.
Referring, now’, to the testimony of I)r. Whitbeck, introduced by the defendant to sustain the plea in abatement, it is found that hi' states distinctly that he purchased the bonds and coupons in suit
We may remark that these questions were not relevant, in view of the issues under which the case was then being prepared for trial, and this may be regarded as explaining to an extent why the questions were not answered. If the defendant thought answers to the questions would bring out facts material to the case, the method provided by law for compelling the answer is very well understood, and was available to the defendant. It is probable that these «pieslions would have been answered if the deposition bad been taken after the issue on the plea in abatement, under which, the case was submitted to the jury, hut the defendant did not retake the deposition. It is apparent that there was really nothing willful or intentionally evasive in Whit beck’s refusal to answer. He was not represented by counsel, and the questions plainly indicated to him that facts impeaching the sale from the hank to himself were sought to be elicited. The apprehension thus excited, with the further fact that witness actually knew but little of the facts, having relied entirely on Moore, goes far to make this reluctance to talk natural, under the circumstances. Every material fact about which Whit-beck refused to testify Avas fully brought out and answered by the witness Moore, and Moore was unshaken and his testimony unaffected by searching and skillful cross-examination. It is very frankly admit fed that one of his purposes in selling these bonds, and in going East to sell them, was to put them in the hands of some person who would be authorized, by reason of diverse citizen ship, to sue in the United Slates circuit court; but he is very clear and positive in bis statement that the sale was made bona fide, and was final and unconditional, without any understanding, express or implied, which in any way qualified the character of the transaction as a complete sale. On cross examination, when asked whether, in the event Whitbeck had failed to realize what he paid for the bonds, he would have refunded the money to Whitbeck, he does say that would have been a question for the future. It is not to he doubted tha t be meant by this that in such a contingency as that suggested he would take into consideration whether or not be was under moral obligation to save Whitbeck from lossy but the testimony is positive that there was no such understanding. As we have said, if the sale by the bank to Whitbeck, through Moore, must be regarded as a valid and real one, the jurisdictional conditions were then complete, and the sale by Whitbeck, already competent to sue in the federal courts, to Ashley, could not have made, and could not have beert intended to make or create, a case cognizable in the courts of the United States. The case, then, stated with reference to the effect of the testimony, is this: The defendant has proved no positive fact by its own wit
When the evidence was all in, the plaintiff’s counsel requested the court, in effect, to instruct the jury that, upon the undisputed testimony, the plaintiff was entitled to a verdict finding against the plea in abatement. This was, in effect, a motion to direct a verdict, and was so treated. The court refused to direct the jury as requested, and error is assigned on the action of the court in this respect. We are of opinion that this assignment is well taken, and that the motion should have been granted, and the jury directed as requested. We think there was no substantial proof on which the defendant was entitled to go to the jury on the plea in abatement. The jury could not, on the testimony adduced, justifiably have in-' ferred the existence of the facts set up in the plea. This view of the case renders it unnecessary to consider other errors assigned on the instructions of the court to the jury. Reversed and remanded, with direction to set aside the verdict and order a new trial.