Miller v. Rogers

29 F. 401 | U.S. Circuit Court for the District of Western Pennsylvania | 1886

Acheson, ,T.

The Metropolitan National Bank, a banking association under tho laws of the United States, located and doing business in the city of Pittsburgh, Pennsylvania, moves the court for leave to file in this cause a hill in the nature of a supplemental bill, agreeably to equity rule 57. The plaintiffs to the suit, as the record now stands, are the assignees in bankruptcy of Rogers & Burchfield; and the purpose of the suit is to set aside a deed of conveyance of real estate made by the bankrupts to Mary Ann Rogers, one of the defendants; tho bill charging that it was a voluntary conveyance, and.fraudulent and void as against tho creditors of the bankrupts and said assignees. Pending the suit, the assignees sold this real estate at public auction to tho said bank, and they have conveyed their title to the bank.

The only objection urged against the allowance of the present motion is that, as the hank could not bring an original suit in this court against the defendants, they being citizens of Pennsylvania, so it cannot maintain tho proposed bill, which, while partaking of the nature of a supplemental bill, is yet an original hill. Story, Eq. Pl. §§ 849, 358. But while technically, and to some intents, it may be an original bill, it is essentially supplementary to the hill of tho assignees in bankruptcy. Id. §§ 345, 346; Mitf. & T. Pl. & Pr. 158. Such a bill, by a party who has acquired tho plaintiff’s title by transfer from him pendente lite-, is not, in a proper sense, the commencement of an original suit, but is rather a mere continuation of the former suit. Harrington v. Slade, 22 Barb. 166; Lloyd v. Johnes, 9 Ves. 37; Adams, Eq. *408; Hoxie v. Carr, 1 Sum. 178. In this latter case, Judge Story, discussing the effect of a transfer of the plaintiff’s title pendente lite, says that the abatement in equity which might thereby ensue would not necessarily be a destruction of the suit, like an abatement at law, but merely an interruption of the suit, suspending its progress until the new party is brought before the court. And in Clarke v. Mathewson, 12 Pet. 164, it was held that the federal court has jurisdiction of a bill brought by the administrator of a deceased plaintiff to revive a suit abated by the plaintiff’s death, notwithstanding the administrator is a citizen of the same state as the defendants, and the original jurisdiction depended on the citizenship of the parties. The doctrine of the case is that, where the court has once acquired jurisdiction of the cause, a supplementary proceeding may be maintained without regard to the citizenship of the parties. The principle is applicable here, and justly so; for the bank was a creditor of the bankrupts, and thus was directly interested in the original bill; and for its protection, having bought the title of the assignees when exposed to public sale, it ought to have the benefit of the suit brought by them. Otherwise, and if driven to a new suit, the bank might, perhaps, be subjected to the bar of the statute of limitations. Section 5057, Rev, St.

And now, June 1, 1886, leave is granted to the Metropolitan National Bank to file its bill.