53 F. 1 | U.S. Circuit Court for the District of Northern Ohio | 1891
This cause is before the court on several motions. The plaintiff moves to remand the suit to the court of common pleas of Allen county, Qhio, from whence it was removed by defendant the Chase National Bank of New York to this court; the Chase National Bank moves to quash the summons issued for it by said court of common pleas, and to set aside the service and the return of the officer on said summons; and the First National Bank of Lima, Ohio, moves to dissolve the injunction heretofore granted and issued against it by said court of common pleas of Allen county.
It appears from the record that the plaintiff is a corporation organized under the laws of Illinois, and a citizen of said state. That on July 8, 1890, its secretary, at Lima, Ohio, executed the note of the company for $16,787.02, payable four months after date to the order of B. C. Faurot; the place of payment designated in the note being at Lima National Bank, Lima, Ohio. That said B. C. Faurot indorsed said note in blank. That defendant Kauffman Simon, who had business relations with plaintiff, obtained possession of said note, fraudulently and by false representations, as plaintiff alleges, and thereafter passed or transferred the same to the Chase National Bank of New York, and said last-named bank, having placed the fol-Bank Lima, Ohio, for collection or order,” sent the note to said Lima lowing restrictive indorsement on the paper, “Pay First National National Bank for collection. While the note was thus held by the Lima National Bank as the agent of the Chase National Bank, the plaintiff filed its petition in the court of common pleas of Allen county, Ohio, against said Simon, the Chase National Bank,'and the First National Bank of Lima, for the purpose of having the said note delivered up and canceled for the alleged frauds of Simon in procuring the same, and because it was executed without authority, was never delivered by the maker, and because neither of the defendants paid or parted with any consideration therefor. It sought to have the note impounded in the hands of the First National Bank of Lima pending the litigation, and a temporary injunction was granted enjoining and restraining said Lima National Bank “from parting with the possession of said instrument, (note,) or delivering the possession thereof to the other defendants herein, or either of them,” and requiring said bank to retain the custody of the-paper until the final hearing of the cause, so that the same might be subject to the order of the court. The defendant Simon and the Chase National Bank be
The claim of the Chase National Bank is that it is the holder of the note for value and without notice of the alleged fraudulent acts and representations of Bimon ii obtaining its execution and delivery to him. The plaintiff rests its motion to remand the cause on three grounds, viz.: First, because all the defendants did not join in the application for removal from the state court to this court; second, because the petition for removal is not sufficient in law to entitle the defendant to the removal prayed for, and was otherwise defective; and, third, because the bond on which the removal was procured was insufficient aud defective, h; not appearing that the seal of the corporation was attached thereto by authority of said defendant, nor that the bond was properly acknowledged, and because it did not appear that the sureties wore sufficient, nor that they had. properly acknowledged the execution of the bond.
In the opinion of the court this third ground for remanding the case is without merit. The bond is regular in all respects. There is nothing to show any insufficiency or defect in it, or want of sufficiency in the sureties thereon. It was properly executed and acknowledged both by the obligor and its sureties, and was formally approved and accepted by he state court to which it was tendered. This court, if it could rightfully review the action of the state court in approving and accepting the bond tendered, is unable to discover from the record any error in the proceeding.
The first and second grounds for remanding may be considered together. They present the question whether the Chase NationalBa.uk alone, without the other defendants joining in the application, was entitled to remove the suit, The right of said bank to effect a removal of the cause on its sole application depends, or must he rested, upon the fact that the suit presents a separable controversy between itself and the plaintiff. By the third clause of the second section of the act of 1887 it is provided as follows:
“And when, in any suit mentioned in this section, there shall ho a controversy which is wildly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district.”
It is settled by the decisions in cases of Barney v. Latham, 103 U. S. 205, and Bacon v. Rives, 106 U. S. 99, 1 Sup. Ct. Rep. 3, following the ride announced in Wood v. Davis, 18 How. 467, under the judiciary act of 1789, that the presence of a formal defendant against whom no relief is sought will not defeat the right of the real party defendant to a removal of the suit. It is very clear that the First Rational Bank of Lima was not an indispensable party to the controversy between the plaintiff and either or both of the other defendants. Said bank occupied the position of a mere stakeholder. It was a matter of no concern or personal interest to it whether plaintiff or the defendants, or either of them, succeeded in the real litigation. It was made defendant, not because of any connection it had with the main controversy, but merely to the end that, as the'temporary custodian or collecting agent having in its possession the paper about which the controversy existed, it might be required to hold and retain the same within the jurisdiction of the court where it would be subject to its orders. Said bank occupied substantially only the position of a stakeholder or garnishee, and, while a' proper, was in no sense an indispensable, party to the controversy Avhich constitutes the foundation of the litigation between plaintiff and the other defendants. So far, therefore, as the First Rational Bank oí Lima is concerned, the right of the Chase Rational Bank to remove the cause is in no way affected or prejudiced by the nonjoinder of said Lima Bank in the application for the removal of the suit. The cases above cited clearly establish this proposition in the opinion of the court.
How stands the case in respect to the defendant Simon? Was the controversy between him and plaintiff separable and distinct from that between the plaintiff and the Chase Rational Bank? Or, rather, has not the Chase Rational Bank a distinct and separable controversy with the plaintiff in respect to the paper which plaintiff seeks to have declared invalid and canceled? The paper was negotiable by the law merchant. It bears date and was made payable at Lima, Ohio. It was indorsed in blank by the payee, and acquired by the Chase Rational Bank, as alleged, for a valuable consideration, before maturity, (presumably,) and without notice of the frauds charged against defendant Simon in procuring the execution ant. deliArery of the paper to himself. Under these circumstances, the right of said Chase Rational Bank to enforce payment of the note against the maker presents a controversy with plaintiff entirely separable from that between plaintiff and said Simon. The controversy between plaintiff and Simon involves the question whether the latter obtained the note by fraud or fraudulent representations, and without consideration, so as to entitle plaintiff to relief as against him.
The mo (ion of the Chase National Bank to quash the summons issued for it by the common pleas court of Allen county, Ohio, and to set aside the service and return of the sheriff of New York county on said summons, on the ground that said common pleas court had no jurisdiction or authority to issue said summons, and the sheriff of New- York county, N. Y., no power or authority to execute said process and make return thereof, is also denied. It is undoubtedly true that one state cannot send its process into another state to he served, and thereby acquire any jurisdiction over the person of the nonresident. It is equally true,' both under state and federal statutes, that a nonresident may be notified by publication or by personal service of notice upon him of the pendency of proceedings in rem, intended to affect the title to or fix liens upon property within the jurisdiction of court and state, so as to bind such nonresident’s interests or rigids in the property itself. Whether the plaintiff’s suit in the common pleas court of Allen county, Ohio, was of this latter character, and whether the statutory or Code provisions of the state of Ohio authorized the mode of service upon said defendant adopted, it is not deemed necessary to consider or determine. The settled rule of this
The motion of the First National Bank of Lima, Ohio, to dissolve the injunction granted against it should be sustained. The note in controversy is now past due, and cannot be further negotiated, so as to affect or prejudice the plaintiff's rights in any way. Besides this, the
The clerk of the United States circuit court for the northern district of Ohio, western division, will make upon the minutes of said court entries in conformity with the foregoing rulings upon the several motions.