5 F. 503 | U.S. Circuit Court for the District of Maryland | 1881
This court having by its rules (as authorized by section 915 of the U. S. Devised Statutes,) adopted the Maryland law of 1864, c. 306, giving to plaintiffs a remedy by attachment on original process, the plaintiff in this case, upon giving bond and filing an affidavit alleging tlia-t it had good reason to believe that the defendant had disposed of some portion of liis property with intent to defraud his creditors, obtained an attachment, which was levied on certain of the defendant’s real estate.
In the present case the affidavit described the plaintiff as “The Third National Bank of Baltimore.” The short note or declaration used the same words and no others. The bond described the obligors as “ The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America, and Thomas Y. Canby, of the city of Baltimore, in the State of Maryland.”
The defendant was returned “summoned, ” and has appeared and demurred to the short note or declaration, and a trustee, to whom the defendant executed a deed of trust for creditors after the attachment was levied, claims the property and moves to quash the attachment. The causes of the demurrer are that the declaration does not set out facts sufficient to show that the federal court has jurisdiction of the case, and also that the plaintiff is not alleged in the declaration to be a corporation.
The claimant of the property attached moves the court to quash the attachment for the reason that the jurisdictional facts and other necessary allegation do not appear, contending that if the declaration is demurrable the attachment is void.
We will first consider the alleged defects in the statement of the facts on which the jurisdiction of the federal court depends. By section 629, subsection 10, of the U. S. Revised Statutes, it is provided that the United States circuit courts shall have jurisdiction “of all suits by or against any banking association established in the district for which the court is held, under any law providing for national banking associations.”
The title of the plaintiff, “The National Bank of Baltimore,” is not in itself an averment either that the plaintiff is a bank
The supreme court has never relaxed the rule that the facts essential to jurisdiction must be affirmatively shown by the record, and cannot be argumentatively deduced from other averments. In Robertson v. Case, 97 U. S. 646, the case had been instituted in the United States circuit court for the district of Texas, and the pleadings stated that the plaintiff resided in “the county of Macon, in the state of Illinois.” It was strongly argued that, as the fourteenth amendment to the federal constitution declares that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state where they reside, the plaintiff was prima facie either an alien or a citizen of the state of Illinois, in which he resided, and in either capacity entitled to sue in the circuit court for the district of Texas; but the supreme court, while acknowledging that there was force in this suggestion, declared it to be unwise to modify the long-established rule on the subject of
It is to be noticed that in Robertson v. Case the particular objection to the jurisdiction relied upon was made after verdict, by a motion in arrest of judgment, when ordinarily the presumption would be that the necessary facts had been proved and every fair intendment allowed to uphold the verdict. The present case, arising upon a demurrer, is one in which much greater strictness might well be insisted upon. If we look to the bond which the plaintiff in this case filed as a condition precedent to obtaining the attachment, and consider it, as we are urged to do, as part of the record, and examine it for an averment of the jurisdictional facts, we find that it relieves the plaintiff in one particular, but as we think in one only.. -It describes the plaintiff as “The Third National Bank of Baltimore, a duly incorporated body under the statutes of the United States of America,” and describes the other obligor as “Thomas Y. ’Canby, -of the city of Baltimore, in the state of Maryland.” This may amount to an averment that the plaintiff is a banking association, established under the law providing for national banking associations, but it is not equivalent in our judgment, for reasons before suggested, to the equally necessary averment that the association is established within the district of Maryland. We must, there
Objection is also made that the declaration does not allege that the plaintiff is a corporation. On this point of pleading we are not at liberty to look at the bond, but must consider the declaration itself.
The fact of the incorporation of the plaintiff is certainly a fact essential to the plaintiff’s case, and necessary to be proved, and one which the defendant is entitled to deny and put in issue; and we think that a declaration which omits this averment, while it would be cured by verdict, must be held bad on demurrer. These defects in the declaration can, of course, be amended, and it only remains for us to consider the motion to quash, and how the amendment affects the attachment. The attachment is a remedy given to the plaintiff by the laws of the state of Maryland. This court was authorized, by the United States Revised Statutes, to adopt the state law providing this remedy, but we must adopt the law as we find it, and as its scope, meaning, and application, and the practice under it, has been settled by the Maryland court of appeals. This is a local law, and if we find that the Maryland court has determined the effect of such an amendment on a proceeding based on that law, we are to be governed by that decision, especially as the right to amend in all ordinary actions is quite as liberal under the Maryland laws and practico as under the United States Revised Statutes.
We find that the Maryland court of appeals has repeatedly held that this statutory remedy by attachment is in all respects strialissimi juris, and that for any defect apparent in the proceedings the attachment may be quashed upon suggestion to the court of such defect by any one having an interest in the property attached. To this doctrine the practice in the state courts has constantly conformed. Hinckley & Mayer on Attachments, § 305; Weaver v. Baltzell, 6 G. & J. 339.
This question of the effect on an attachment of a necessary amendment to the declaration has been, we think, passed
These decisions of the court of appeals of Maryland we take to be conclusive as to the effect of an amendment to the declaration in an attachment case under the Maryland statute, and binding upon us in applying that statute to proceedings in this court. Our attention has been called to Neptune Ins. Co. v. Mantell, 8 Gill. 228, and Norris v. Graham, 33 Md. 56, two cases in which it is claimed that the court did not quash the attachment, although the declarations were amended. In the latter case no motion to quash the attachment appears to have been made; the defendant appeared and pleaded to the declaration. The controversy appears to have been entirely whether he was liable at all to the plaintiffs, and not as to the validity of the attachment; and, as it appeared that by amending his declaration the plaintiff might obtain a personal judgment against the defendant, a new trial was awarded, but the fate of the attachment does not appear.
In the case of Neptune Ins. Co. v. Mantell, decided in 1849, it would seem that by sending the case back for a new trial against the garnishee, after amendment to the declaration, the court did sustain the attachment; but the precise point does not appear to have been either argued by counsel or passed upon by the court of appeals, and in the two very recent decisions of that court, to which we have above referred, it does appear that the precise point was expressly ruled to the contrary.
It follows that the demurrer must be sustained, with leave to the plaintiff to amend the declaration, and the attachment must be quashed.
Bond, C. J., concurred.