Myers v. Hettinger, 94 F. 370

Myers v. Hettinger

94 F. 370 | 8th Cir. | 1899

CALDWELL, Circuit Judge.

At the threshold of this case we are constrained to remark that the record presents an inexcusable amount of rubbish. We fully agree with the learned trial judge that there is a “want of simplicity in the pleadings.” They are prolix, and contain much that is frivolous and irrelevant. The presentation of the case to this court is characterized by the same faults. As has been stated, the cause was tried before the court, who made a special finding of facts; and notwithstanding the repeated decisions of the supreme court and of this court, and, indeed, of all the appellate courts, of the Uni led HI a tes, that in such cases the appellate court cannot inquire whether Hie evidence supports the special findings of facts,, but only whether the facts found are sufficient to support the judgment, there are various assignments of error to the effect that the evidence was not sufficient 1o support the special findings of facts, and the testimony is set out, and lengthy arguments made to support that contention. The record discloses that contentions were made in the lower court which were frivolous and hypercritical, and they are renewed in this court.

The jurisdictional averment of the complaint was that “the plaintiff, Franklin P. Hettinger, receiver of the Hutchinson National Bank, of the city of Hutchinson, state of Kansas,” states “that he is the *372duly appointed, qualified, and acting receiver of the Hutchinson National Bank; that as such receiver he is in charge of all the assets of said bank, with power to collect them by suit or otherwise; * * that the plaintiff, Franklin Hettinger, receiver of the Hutchinson National Bank, is an officer of the government.” The circuit court made two findings on this subject,- — one to the effect “that on October 18, 1893, the said Hutchinson National Bank closed its doors, being insolvent, and was taken in charge by the comptroller of the currency, and the plaintiff in this action was appointed receiver,” and the other to the effect that “the court further finds that Franklin P. Hettinger, the plaintiff, was at the commencement of this suit, and is now, the duly appointed, qualified, and acting receiver of said bank.” It is sufficient to support the jurisdiction of a federal court that the facts requisite to confer it appear in any part of the record, or are the necessary consequences of the facts stated in the pleadings or the findings of the court. Ward v. Manufacturing Co., 12 U. S. App. 295, 5 C. C. A., 538, and 56 Fed. 437.

It is further contended that the court below had no jurisdiction because the amount in controversy was less than $2,000, exclusive of interest and costs. But it has been repeatedly decided that a receiver appointed by the comptroller of the currency to close up the affairs of an insolvent national bank may sue in the federal court, without -regard to his citizenship or the amount in controversy. Price v. Abbott, 17 Fed. 506. The opinion was by Mr. Justice Gray, who cited Platt v. Beach, 2 Ben. 303, Fed. Cas. No. 11,215; Stanton v. Wilkeson, 8 Ben. 357, Fed. Cas. No. 13,299; Kennedy v. Gibson, 8 Wall. 498; Bank v. Kennedy, 17 Wall. 19; U. S. v. Hartwell, 6 Wall. 385. The later cases are Armstrong v. Ettlesohn, 36 Fed. 209; Stephens v. Bernays, 41 Fed. 401, and cases there cited.

While the special findings of facts and declarations of law are somewhat mingled, the special findings of facts are conclusive on the merits of this case. The court below found that the nóte in suit was sold, assigned, and transferred to the bank by the payee, Little, in the presence of the defendant, who made no objection thereto; that the two notes for $1,000 each, secured by mortgage on real estate, were executed by little to the defendant, Myers, to secure him against loss on account of the note here sued on, and by reason of his liabilities as stockholder in the bank, growing out of his purchase of the $1,000 of its stock; that the defendant’s liability to loss by reason of his being a stockholder in the bank has been fully satisfied with the proceeds of one of the notes, and that at the time defendant filed his answer he was foreclosing a mortgage given to secure the other $1,000 note; that the property mortgaged “is reasonably sufficient to secure the payment” thereof; “that the defendant has failed to allege or prove that he has suffered any damage by reason of the purchase of'the bank stock from W. L. Little”; and “that defendant has not in any way been defrauded in the purchase of the bank stock.” As we construe the special finding of facts, Little, for the purpose of indemnifying the defendant against loss by reason of the purchase of the bank stock, and to indemnify him for paying the $1,000 note which he executed for the purchase money *373of the stock, and which had been transferred to the bank in the presence of the defendant, and apparently with his knowledge and consent, executed his two notes of $1,000 each, secured by a mortgage on real estate; that the purchase of one of these notes has satisfied the defendant’s liability as a stockholder; and that he still holds, and is proceeding to foreclose, the mortgage given to secure the remaining note, to meet his liability on the note here in suit. Much is said about the fraudulent means by which defendant v/as induced to purchase the bank stock, and the damage resulting to him therefrom; but all contention on these subjects is foreclosed by the special findings of the court that the defendant was "not in any way defrauded in ihe purchase of the bank stock,” and "that he has failed to allege or prove inai ho has suffered any damage by reason of the purchase of (he bank stock.” This court cannot look into the evidence with a view to determine whether it supports these special findings of fact by the court. In Supreme Lodge v. England (at the present term) 94 Fed. 366, we said:

“11 is the settled rule of the supreme court, of the United States and of this court that, when a case is tried hy a federal court without a jury, the sufficiency of the evidence to sustain its general findings of fact cannot he considered hy the appellate court. Hoge v. Magnes, 56 U. S. App. 500, 29 C. C. A. 564, and 85 Fed. 554, and cases there cited. Minchen v. Hart, 36 U. S. App. 534, 18 C. C. A. 570, and 72 Fed. 294. In Lehmen v. Hickson, 148 U. S. 71, 77, 13 Sup. Ct. 484, the supreme court declare with emphasis that: ‘The duty of finding ihe facts is placed upon ihe trial court. We have no authority to examino rlie testimony in any case, and from it make a finding of the ultimate facts.’ ”

It was not not up in the answer, and is not claimed in the brief, that the defendant is not fully indemnified for the payment of the note in suit. It fe clear to our minds, from the facts found by the lower corad , that the defendant, in consideration of the execution of the two $1,000 notes, and the mortgage to secure tin; same, was to pay and satisfy the note held by the bank, and here in suit. He now seeks to escape the obligations of that agreement, and to defeat the collection of the note in suit, and at the same time retain the securities given him to pay it. Upon ihe facts found by the lower court, the judgment was for the right party and for the right amount, and the same is affirmed.