31 Colo. 178 | Colo. | 1903
delivered the opinion of the court.
1. To establish the first defense, the defendant offered the same evidence given in a former action on the same coupons between the same parties in the circuit court' of the United States, for the district of Colorado, tending to show that while the plaintiff held them under a bill of sale absolute on its face, as a matter of fact, the transaction was not a sale, but virtually a loan, the plaintiff paying at the time of .delivery of the coupons, which amounted to more than seven thousand dollars, less than a thousand dollars, and various other sums from time to time thereafter and down to the beginning of this action; and that the agreement and understanding was that upon the conclusion of the suit and the recovery of judgment, the amount collected was to be paid over to the real owner, the assignor or pledgor, less what money had been paid to him prior to that time by the assignee or pledgee, with interest at one per cent a month.
In the former suit to which reference is made in this offer, namely, Board of Commrs. of Lake Co. v. Schradsky, 97 Fed. Rep. 1, the United States circuit court of appeals for the eighth circuit reversed the judgment of the circuit court of the United" States for the district of Colorado in plaintiff’s favor upon the
As we understand the argument of appellant it is that since the federal court, upon this evidence in the action before it, found that the transfer of the coupons to the plaintiff was merely colorable, or that plaintiff was not the absolute owner, at least tended to make a case for the jury upon that issue, and so dismissed the action for want of jurisdiction; it follows that plaintiff cannot sue in the state court. For, they say, if plaintiff was not the real owner when she brought suit in" the federal court, she is not now; and if that fact prevented her maintaining that suit it has the same effect here.
This' conclusion is not tenable. And it is not true that plaintiff is not ‘ ‘ the real party in interest ’ ’ in the sense in which those words are used in section 3 of our code. If the federal court did not have jurisdiction over the subject-matter of the suit, neither its finding that the transfer was collusive, nor its judgment of dismissal for want of jurisdiction operates to extinguish-plaintiff’s right of property in these coupons, or prevents her from bringing suit in the state court to enforce their collection, and that, too, even
The bill of sale under' which plaintiff holds was absolute on its face, and she had possession of the coupons, which were payable to bearer, and brought them into court in this action, and surrendered them for cancellation. The offer of proof in support of this defense, as made by counsel themselves, was that the transaction between plaintiff and Gen. Johnson, the former, and, as they say, still “the redi owner” of the coupons, was virtually a loan. If that is true, and for the purposes of this 'ease we may assume that it is, plaintiff unquestionably has the right to maintain the action. An assignee or pledgee of a nego
In 18 Amer. & Eng. Law (1st ed.), 681, 682, and in the 22d volume of the 2d edition, pages 894, et seq., a number of authorities are collected which sustain the text which declares that when a negotiable instrument, either before or after maturity, is transferred and delivered to a creditor as collateral security, the control thereof passes to the pledgee, and it is his right and duty to enforce payment when the same falls due, though the pledgor’s debt to the pledgee, for which the latter holds the security, is less than the amount of the collateral. It is also held that such pledgee is the legal holder, has the legal title, and therefore is “the real party in interest,” and may bring suit upon it in his own name. For additional authorities see 14 Enc. Pl. & Pr., 435, 436.
This offer of proof was properly refused as, even if it abundantly established the ultimate fact alleged that the transfer was a loan, it would be no defense to the action.
Counsel cite the case of Wonderly v. Lafayette County, 150 Mo. 635, 648, to the proposition that where a judgment has been obtained in a federal court as the result of a fraud practiced upon its jurisdiction, a bill of equity will lie in the proper state court to set it aside because of the commission of such fraud. With due respect to counsel, we do not see
2. As heretofore indicated, upon the.remanding of the cause by the circuit court of appeals to the circuit court for a new trial, the.latter tribunal, after hearing evidence in behalf of the plaintiff, upon defendant’s motion, dismissed the action solely upon the ground that it had no jurisdiction of the cánse. From this judgment of dismissal the plaintiff there (who is the plaintiff in the action here) sued out a writ of error in..the supreme court of the United States to the-judgment of the circuit court to review its judgment of dismissal. No supersedeas was granted. The defendant contends that while this writ of error is pending in the supreme court of- the United States, further proceedings herein should be suspended. The rule which counsel has in mind has been enforced where two suits are pending in the same jurisdiction, but the great weight of. authority, both in the federal and state courts, is that pendency of a prior action in one jurisdiction is not a bar to a subsequent, action in another, even though the two suits are upon the same cause of action and between the same parties. Some of the authorities directly in point are: Defiance Water Co. v. City of Defiance,
In McJilton v. Love, supra, it was held that the pendency of a writ of error cannot be pleaded in abatement of another action in the same state unless the writ of error operates as a supersedeas, and not even then if the writ of error was sued out after the commencement of the second action.
Neither-of the defenses upon which the appellant relies upon this appeal is good, and'the judgment of the district court in favor of the plaintiff upon- the causes of action set up in the complaint was right. It is, therefore, affirmed.
Affirmed.