68 F.2d 543 | 5th Cir. | 1934
The American Surety Company, a New York corporation, sued Sarasota county, a county in Florida,- for money had and received under circumstances set forth at length in its declaration. The county demurred on the ground that it was not suable in the federal District Court; and, its demurrer having- been overruled, filed a plea, in which it did not deny, and therefore admitted, the facts as alleged by the surety company, but in which-it sot out a state of facts in confession and avoidance. On the surety’s motion, the District Judge struck this plea as being “frivolous and without merit,” on the same ground denied leave to file an amended plea, and entered judgment by default. Final judgment was later entered upon the default; the parties waiving- a jury. The ease as thus made by the declaration, and uncontroverted by any plea filed or tendered, .is this; Appel-lee on August 9, 1927, became surety on the bond of its principal, the American National Bank of Sarasota, in the sum of $10,000, to secure the public deposits of the county in the bank. The condition of the bond was that the bank “safely keep, account for and pay over on demand by the proper authorities
A county in Florida is suable for its debts. Comp. Gen. Laws Fla. 1927, § 2202; Payne v. Washington County, 25 Fla. 798, 6 So. 881; Dade County v. City of Miami, 77 Fla. 786, 82 So. 354. Suits which under the law of a state can be maintained in the state courts may also be maintained by original process in a federal court where, as here, the jurisdictional amount is involved and the plaintiff is a citizen of another state. Chicot County v. Sherwood, 148 U. S. 529, 13 S. Ct. 695, 37 L. Ed. 546. It appears without dispute that Sarasota county, for a valuable consideration, unconditionally released both the bank and the surety from liability on the depository bond. If, as is asserted by the pleas, the resolution was intended to release the county only, nevertheless the surety would be discharged, because a surety cannot recover over against a principal who has been discharged by his creditor. Cage’s Executors v. Cassidy, 23 How. 109, 116, 16 L. Ed. 430; Trotter v. Strong, 63 Ill. 272; Brandt on Suretyship and Guaranty, vol. 1, § 164. The pleas do not allege that the release was executed under a mistake of fact, or that the county at the time of adoption of the resolution was ignorant of Hillyer’s claim. They are entirely consistent with the inferences that the county, before the release was executed, had assumed payment of that claim, and, after it received the surety’s check, sought to discharge its own obligation at the surety’s expense. It was not alleged by the county that the surety had knowledge of the pending settlement when pursuant to demand it sent its eheck for the full amount of the bond; and so no question of waiver arises. For all that appears, the county had knowledge of the bank’s insolvency before the settlement. The surety was not estopped to bring its suit merely because it received from the county, and retained in its possession, the receiver's certificate assigned and sent to it by the county, since it does not appear that the surely asserted any right under that certificate by collecting dividends or otherwise. The stricken plea was not only insufficient, and hence subject to demurrer; it failed to set up even inartificiálly any valid defense. It was whol
Reversible error is not made to appear by any of the assignments, and the judgment is affirmed.