Newberry v. Robinson, 36 F. 841

Newberry v. Robinson

36 F. 841 | U.S. Circuit Court for the District of Southern New York | 1888

Coxe, J.,

(after stating the facts as above.) There is no doubt as to the general'rule that an administrator cannot sue or be sued in his official capacity outside the limits of the state where he was appointed. Vaughan v. Northup, 15 Pet. 1. It is also well settled that a judgment in legal effect creates a new debt, and it is this debt, so evidenced, that the complainants sire seeking to enforce. Unquestionably the complainant New-berry could have maintained an action against the railway company upon the judgment in this state, in her'personal capacity. She could have- so brought this action. The recovery of the judgment left the debt due to her, not as administratrix, but as an individual. Strike from' the bill the allegations relating to her appointment as administratrix, etc., and it states a good cause of action. But these allegations are mere descriptio personas, and may be rejected as surplusage. This has frequently been done in analogous cases. Indeed, it is not easy to see how the complainants can obtain relief in any other form. Biddle v. Wilkins, 1 Pet. 686; Bonafous v. Walker, 2 Term R. 126; Wilkinson v. Culver, 23 Blatchf. 416, 25 Fed. Rep. 639; Talmage v. Chapel, 16 Mass. 71; Nichols v. Smith, 7 Hun, 580; Bright v. Currie, 5 Sandf. 433; Murray v. Churchy, 1 Hun, 49. So considered, the cause of action seems simple enough. The complainants have a judgment which is evidence that the railway company owes them as individuals the sum of $16,048. This debt they have endeavored to collect of the company, but the execution issued upon their judgment has. been returned unsatisfied. The laws of the state where the company was created provide that in such circumstances • the shareholders shall be liable to contribute to a limited extent towards the payment of the debt;' The action is in the nature of a creditor’s bill to-reach the money which, under the statute, should be contributed to the payment of the judgment. Hatch v. Dana, 101 U. S. 205; Henry v. Railroad Co., 17 Ohio, 187; Ogilvie v. Insurance Co., 22 How. 380.

'The.second ground.of demurrer is.not well.taken, for the reasoa. that *843the constitution and statutes of Ohio “are matters of which "the courts of the United States are bound to take judicial notice, without plea or proof.” Lamar v. Micou, 114 U. S. 218, 5 Sup. Ct. Rep. 857; Bank v. Francklyn, 120 U. S. 747, 7 Sup. Ct. Rep. 757. The demurrers are overruled. The defendants may answer within 20 days.