104 F. 369 | 8th Cir. | 1900
Lead Opinion
(after stating the facts as above). The first objection to the judgment here is that this case was not removable to the federal court, and that the United States circuit court had no jurisdiction to hear or decide it. But the United States circuit courts have jurisdiction “of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States,” and every suit of that character may be removed from a state to a federal court. Acts of March 3, 1887, and August 13, 1888 (25 Stat. 434, c. 433, §§ 1, 2). This is a suit arising under the laws of the United States. It is a suit against a shareholders’ agent, chosen by the stockholders of a national bank in pursuance of “An act authorizing the appointment of receivers of national banks and for other purposes,” approved June 30, 1876, and its amendments, to obtain a share of the trust funds he is administering. 19 Stat. 63, c. 156; 27 Stat. 345, c. 360; 29 Stat. 600, c. 354. An action by or against a receiver of a national bank, appointed under this act, is an action arising under the laws of the United States, because the act of congress creates his office, grants his rights and powers, and imposes his duties. In the absence of this act there would be no such receiver, and no suits against him could arise. Every action by or against him necessarily involves the exercise of some of his rights, or the proper discharge
“Tilt; agent proceeds in tlie settlement with like authority to dial conferred upon the receiver, although at the conclusion ot his duty he is required to render to The circuit or district court of the United States for the district, where tlie business of the bank is carried on ⅛ full account of all his proceedings, receipts and expenditures as such agent, which court shall, upon due notice, settle and adjust such accounts and discharge said agent and the sureties upon his bond.’ ”
The purpose of this suit was to control the official conduct of this shareholders’ agent, and. to compel him to pay to the plaintiff out of the trust fund in his hands $1.000, which the agent claimed lie was required under the laws of the United States, from which he derived his appointment, to distribute to the shareholders. ¡Since-his conduct as agent must be regulated and tried by these laws, this ad ion and every action by or against a shareholders’ agent chosen under this act of congress invoke the consideration of, and arise under, the laws of the United States.
Again, by section 4 of the Acts of 1887-88 (25 Stat. 436) it is provided that national banks shall be deemed citizens of the states in
“The provisions of this section shall not he heid to affect the jurisdiction of the courts of the United States in cases commenced hy the United States or by direction of an officer thereof, or eases for winding up the affairs of any such bank.”
This is clearly a case for winding up the affairs of such a bank. It is a suit to take $4,000 from the fund realized from the collection and sale of the assets of the National Bank of North Dakota in the process of winding up its affairs under the act of congress, and to pay it to the plaintiff, instead of permitting it to be distributed to the shareholders.
Moreover, it is now well settled that a receiver of a national bank is “the agent and officer of the United States,” and that the federal courts have jurisdiction of actions by and against him as such an officer, under the provisions contained in section 4 of the Acts of 1887-88, which we have just quoted. In re Chetwood, 165 U. S. 443, 458, 17 Sup. Ct. 385, 41 L. Ed. 782; Frelinghuysen v. Baldwin (D. C.) 12 Fed. 395; Price v. Abbott (C. C.) 17 Fed. 506; Armstrong v. Ettlesohn (C. C.) 36 Fed. 209; Armstrong v. Trautman (C. C.) 36 Fed. 275. Now, a receiver is not an officer of the United States because the nation has any pecuniary or other interest in his acts or omissions, but simply because an act of congress authorizes his appointment, prescribes his duties, and designates the appointing power. By the same mark, a shareholders’ agent is an agent and officer of the United States. The same act creates his office, authorizes his appointment, designates the appointing power, and imposes upon him the same duties. While at a certain stage in the proceedings for winding up the affairs of a national bank the power designated to appoint the agent may exercise its option to continue the receiver or to choose the agent, when that option has been exei*-cised, and the agent has been appointed, he discharges the same duties as the receiver, and becomes the “agent and officer of the United States,” in every sense in which the receiver is such an agent and officer. McConville v. Gilmour (C. C.) 36 Fed. 277, 1 L. R. A. 498; Snohomish Co. v. Puget Sound Nat. Bank (C. C.) 81 Fed. 518, 519; Speckart v. Bank (C. C.) 85 Fed. 12, 19; Brown v. Smith (C. C.) 88 Fed. 565, 566. The result is that the federal courts have jurisdiction of an action by or against the agent of the shareholders of a national bank chosen under “An act authorizing the appointment of receivers of national banks and for other purposes,” and its amendments (19 Stat. 63, c. 156; 27 Stat. 345, c. 360; 29 Stat. 600, c. 354), in the absence of diversity of citizenship, and such a suit may be removed from a state to a federal court.
It is said, however, that the petition for removal avers that the defendant had settled his final account as agent, had resigned his position, and a receiver had been appointed in his stead, in December, 1897, — four months before the amended complaint, which first stated a cause of action against him as an officer,, was filed, — and
Moreover, it does not seem to us that the resignation of this defendant after the commencement of the suit against him could relieve the trust fund, either in his hands or in those of his successor, of the liability to respond to this suit fixed upon him by the commencement of it before bis resignation, filie wrongful act charged in the original complaint was the same act upon which the amended complaint is based. It was committed on December 5, 1895, when the defendant was the agent of the shareholders. This action was commenced in August, 1897, while he was still the stockholders’ agent, and before he had resigned. In April, 1898, four months after his resignation, this suit was transformed by amendment from an action against the defendant individually to a suit against the fund which he held in his official capacity as agent. There was no question of the statute of limitations here, and this amendment related back to the commencement of the action, so that the case stood the same as though the amended complaint had been filed when the suit was commenced. Bowden v. Burnham, 59 Fed. 752, 754, 8 C. C. A. 248, 251, 19 U. S. App. 448, 453. It was therefore, in law, an action against the fund in the hands of this trustee, commenced against him while he was acting as such trustee; and his subsequent resignation of the trust, and the substitution of another officer in.his place, could not abate or destroy it. The statutes of the state of North Dakota provide: “No action shall abate by the death, marriage, or other disability of a party or by the transfer of any interest therein, if the cause of action survives or continues.” Rev. Codes N. D. 1895, § 5234. The receiver subsequently appointed upon the resignation of Hanway was a mere sue-
Another objection to the jurisdiction of the court is that the case was not removed until after the time had passed within which the defendant was required by the laws of the state of North Dakota to-answer or plead to- the original complaint in the action. But the original complaint stated no cause of action against the defendant as the shareholders’ agent. It was not until the amended complaint was filed that such a cause of action was stated, and it was then that a case first arose under the laws of the United States. The-petition and bond for removal were presented within the time prescribed for answer or plea to the amended complaint. Where a case is not removable when the time for its removal prescribed in the act of congress expires, but subsequently becomes so by amendment or other action, the filing of a petition and bond for its removal within a reasonable time after it becomes removable entitles the petitioner to its removal. Powers v. Railway Co., 169 U. S. 92, 101, 18 Sup. Ct. 264, 42 L. Ed. 673; Bailey v. Mosher (C. C.) 95 Fed. 223; Speckart v. Bank (C. C.) 85 Fed. 12. None of the pleadings in this case were filed in the court until long after its removal from the state court, but the statutes and practice of the state of North Dakota did not require them to- be filed, inasmuch as they were served upon the opposite party. Moreover, the time and the manner of the presentation of the pleadings and the petition relate to the form and method of the proceeding, and not to the essentials of the right of removal. No motion to remand this case was made, and, if there were any defects in the time or manner in which the proceedings were taken, they have been waived. Edrington v. Jefferson, 111 U. S. 770, 4 Sup. Ct. 683, 28 L. Ed. 594; Railroad Co. v. Burns, 124 U. S. 165, 8 Sup. Ct. 421, 31 L. Ed. 333; Railroad Co. v. Daughtry, 138 U. S. 298, 11 Sup. Ct. 306, 34 L. Ed. 963; Martin v. Railroad Co., 151 U. S. 673, 686, 687, 14 Sup. Ct. 533, 38 L. Ed. 311.
Coming to the merits of.the action, it is assigned as error that the court below denied the motion of the plaintiff for judgment on the pleadings. In its amended complaint the plaintiff alleged that about December 5, 1895, the defendant held a pledge of 40 shares of the capital stock of the Merchants’ National Bank of Devil’s Lake,
Another specification of error is based on the proposition that the
Dissenting Opinion
(dissenting). Tie defendant, Hanway, was not sued individually. Tie action was brought against him in his official capacity as stockholders’ agent of tie National Bank of Norti Dakota. Tie amended complaint did not change tie cause of action, or pray for any different relief from tiat sought by the original complaint. On tie 20th day of December, 1897, Hanway resigned his office as stockholders’ agent, and on tie same day tie United States circuit court appointed D. B. Holt receiver to wind up tie affairs of tie bank. More than three months after all tiis had been done, tie defendant Hanway again appeared upon tie scene, and filed a petition to remove tie cause into the circuit court of the United States upon the ground that, as stockholders’ agent, he was an officer of tie United States. It is needless to say tiat he occupied no such relation at tie time he filed tiis petition. He had resigned his office, if office it may be called, months before. His resignation had been accepted, tie state of his accounts' ascertained and declared, and his official or trust relation or agency in the business completely terminated, and tie court had appointed Holt receiver to close up tie affairs of tie bank, to whom all of its assets had been turned over by Hanway. The appointment of Holt as receiver rests upon the general equity powers of tie court, and not upon any special authority conferred by act of congress providing for winding up tie affairs of insolvent national banks. Moreover, tie application for removal was made too late. Tie time within wiici tie action could be removed had long since passed. This is not a mere formal matter wiici tie court and parties may disregard at pleasure. Tie requirements of tie act of congress in tiis regard are jurisdictional and peremptory, and obligatory upon tie parties as well as tie court. Tie person making tie application for tie removal had long since passed out of tie case, and had no further interest therein, either personal or official, and had no shadow of a right to appear in tie case for any purpose whatever. He was as much a stranger to tie case as if he had never been a party. As no other person sought to remove the case, it is unnecessary to inquire whether tie receiver appointed by tie circuit court could have
