84 F. 71 | U.S. Circuit Court for the District of Washington | 1897
In the case of Matthews v. Bank, 79 Fed. 558-560, this court decided that the vote of the stockholders of the Columbia National Bank of Tacoma to increase the capital stock
As to all the questions considered and passed upon in the case of Matthews v. Bank I now adhere to and follow the ruling in that case. The defendant now contends that the bill of complaint shows upon its face that no deceit was practiced upon plaintiff; that he had means of obtaining knowledge, and by diligence could have ascertained the truth in regard to the transaction before making either of said payments; and that, although he failed to obtain true information, his fault in neglecting to seek for information is inexcusable, and therefore he occupies the position of one who has made a voluntary payment in settlement of a claim asserted against him, and he is not entitled to recover back any part of such voluntary payments. On this point I hold that a payment is not a voluntary payment if made under an erroneous belief on the part of the payor as to a liability to pay, which in fact did not exist, and that money paid under a mistake as to the facts affecting a supposed liability may be recovered back,
This demurrer is also based in pari, upon the ground that there is a defect of parties defendant. It is insisted that the comptroller of the currency and treasurer of the United States are indispensable parlies, for the reason that the $'3,050, paid by the complainant to the receiver has been placed in the treasury of the United States, and can only be repaid by the treasurer, under an order to be made by the comptroller of the currency, authorizing such repayment. It lias not been usual to join these officers as parties defendant in actions of this nature, and, as they are not within the reach of process of this court, it is not practicable to bring them into the case so as to bind them by any judgment which the court can render. The receiver of an insolvent national hank is authorized to sue and defend actions for the purpose of collecting the assets, and for the adjudication of disputed claims against such bank. The court can only go so far as to render a declaratory judgment, esi ablishing the rights of the respective parties. If the complainant obtains a judgment in his favor, the comptroller of the currency must make an order to pay it. It is not to he presumed that the officers of the government will refuse to pay, in whole or in part, any lawful judgment; but, if there should be an obstinate refusal on the part of the comptroller of the currency, or on the part of the treasurer of the United States, to pay a judgment out of the funds available for the purpose, the complainant must seek for vindication of liis rights by an application to a court having jurisdiction at the place where said officers reside for coercive measures. But the possibility of having to work out satisfaction of a judgment with the assistance of a court of another jurisdiction forms no barrier to an adjudication of the rights of the parties within the jurisdiction of this court. If the suit were against the defendant in his capacity as an individual, and if he had no property subject to execution in this district, but did have ample means situated in another state, it could not be insisted that he would not he suable in this court, because the judgment could not be enforced by process of this court, nor could it be urged that persons in another state were necessary parties defendant, because they were in actual possession of the only property available to satisfy a judgment against the defendant. Demurrer overruled.