Bailey v. Mosher

| U.S. Circuit Court for the District of Nebraska | May 7, 1896

KI LIRAS, District Judge.

This action was begun in the district court of Seward county, Neb., it being averred in the petition that the defendants were directors of the Capital National Bank, a corporation doing business in the city of Lincoln, Neb.; that the defendants, for the purpose of inducing the plaintiff and others to do business with and loan money to said corporation, made pretended statements of the condition of the said corporation, its assets and liabilities (the same being in writing, and copies thereof being attached to the petition); that, relying upon said statements, the plaintiff loaned to said corporation various sums of money, amounting in the aggregate to the sum of $11,500; that said statements were in fact false in many particulars, and were so known to be to the defendants when they signed and pat forth the statements in question, and that said bank was at the time wholly insolvent, and in consequence thereof the plaintiff lost the’sums of money so loaned as above stated; thereupon a cause of action for damages had accrued to the plaintiff. The exhibits attached*to the petition show that the written statements declared on are reports of the condition of the Capital National Bank made by the defendants, as officers and directors of the bank, under the statutes of the United States and regulations of the comptroller of the currency. The defendants, appearing in the state court, filed a petition for the removal of the case into this court upon the ground that the controversy was one arising solely under the provisions of the constitution and laws of the United States, and was therefore removable into the federal court, regardless of the fact that the plaintiff and'defendants were citizens of the same state. The state court refused to grant, an order of removal, but: defendants caused a transcript of the record to be filed in this court,*,and the case is now before this court upon a motion to remand.

It is now well settled that under the provisions of the act of 1887, as amended by the act of 1888, a case cannot be removed from a state to the federal court, upon the ground that the controversy is one arising under the constitution and laws of the United States, unless it is made clear upon the face of the petition or hill filed by the plaintiff that in fact the controversy sought to be adjudicated is one arising under the federal constitution or statutes. Metcalf v. Watertown, 128 U.S. 586" court="SCOTUS" date_filed="1888-12-17" href="https://app.midpage.ai/document/metcalf-v-watertown-92368?utm_source=webapp" opinion_id="92368">128 U. S. 586, 9 Sup. Ct. 173; Mining Co. v. Turck, 150 U.S. 138" court="SCOTUS" date_filed="1893-11-06" href="https://app.midpage.ai/document/colorado-central-consolidated-mining-co-v-turck-93691?utm_source=webapp" opinion_id="93691">150 U. S. 138, 14 Sup. Ct. 35; Tennessee v. Union & Planters’ Bank, 152 U.S. 454" court="SCOTUS" date_filed="1894-03-19" href="https://app.midpage.ai/document/tennessee-v-union--planters-bank-93850?utm_source=webapp" opinion_id="93850">152 U. S. 454, 14 Sup. Ct. 654. From tlie ruling made by tbe court of appeals for this circuit in Bailey v. Mosher, 11 C.C.A. 304" court="8th Cir." date_filed="1894-09-10" href="https://app.midpage.ai/document/bailey-v-mosher-8850643?utm_source=webapp" opinion_id="8850643">11 C. C. A. 304, 63 Fed. 488, it follows that actions based upon the express provisions of the banking act present controversies arising' under the laws of the United States, but the same are only maintainable, after- a bank has gone into insolvency, in the name of the receiver. In Hayden v. Thompson, 17 C. C. A. 592, 71 F. 60" court="8th Cir." date_filed="1895-12-09" href="https://app.midpage.ai/document/hayden-v-thompson-8854265?utm_source=webapp" opinion_id="8854265">71 Fed. 60, it was furthermore ruled by the same court that a person legally injured by the wrongful acts of the officers and directors of a national bank, and which acts create causes of action under the principles of the common law, may count on the common-law liability for damages caused him. Actions of this character, however, would not present controversies arising under the laws of the United States, and of them the federal courts could not have jurisdiction, either originally or by removal, if they were between citizens of the same state. The petition in the case now before the court is clearly based, not upon the provisions of the national banking act, but upon a liability claimed to arise under the principles of the common law; and, as the requisite diversity of citizenship does not exist to justify a removal on that ground, it must be held that the state court rightfully refused to order a removal of the case.