70 F. 725 | U.S. Circuit Court for the District of Nebraska | 1895
The plaintiff, in this action is the receiver of the First National Bank of Ravenna, Neb., acting as such by virtue of an appointment made by the comptroller of the currency, and the action is based upon a draft drawn by W. W. Pool on Rollin L. Downing for 'the sum of $2,000. After acceptance by Downing, the draft was transferred by indorsement to the First National Bank, and by it pledged, with other collaterals, to the United States National Bank of Omaha to secure a loan of $5,000. Upon the appointment of the plaintiff as receiver of the insolvent First National Bank of Ravenna, the draft was placed in his hands for collection, being indorsed to him as follows:
“Pay S. B. Thompson, receiver,' for collection, and in trust for United States National Bank, Omaha, Neb. M. T. Barlow, Cashier.”
The defendants move the court to dismiss the action brought by the receiver, on two grounds: First, that the plaintiff is in fact suing as the indorsee of the United States National Bank, and as that bank.could not sue in this court, because the defendants are citizens of Nebraska, therefore the plaintiff, as indorsee, cannot sue in this court under the provisions of the act of 1888; and, second, because the amount in controversy does not exceed $2,000, exclusive of interest and costs.
In the case of Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, it was held by the supreme court that it was open to the parties to show by evidence, outside the written contract sued on, what the real relation of the parties thereto was, in determining whether, in fact, the plaintiff was seeking to enforce a right of action conferred upon him by the indorsement, or whether his right of action was otherwise created. Under the rule announced in that case, it is open to the plaintiff to show and prove that he is seeking to recover upon the title created in him as the receiver of the First National Bank to all the assets of that bank; and the averments of the petition show that the draft in question, although pledged as a collateral to the United States National Bank, still remains an asset of the bank of which plaintiff is receiver. The action by the receiver is, therefore, to enforce a right conferred upon him by the statutes of the United States, and, being based upon the laws of the United States, the controversy, so far as the subject-matter is concerned, is
But it is urged in argument that the suit, being in the name of the receiver of a national bank, appointed by the comptroller, can be held to be a suit brought by an officer of the United States under the provisions of the third clause of section (¡2Í) of the Revised Statutes, which enacts that the circuit court shall have jurisdiction “of all suits at common law where the United States, or any officer thereof suing under the authority of any act of congress, are plaintiffs.” In Price v. Abbott, 17 Fed. 506, this question was up for consideration before the circuit court of the district of Massachusetts, and Justice Gray therein held that: a receiver of a national bank, acting under an appointment from the comptroller of the currency, who is the head of a bureau in the treasury department, may be presumed to be appointed with the approval or concurrence of the secretary of the treasury; and such appointment is therefore made by the head of a department, within the meaning of section 2, art. 2, of the constitution of the United States. Following the doctrine of this case, the same ruling has been made in other circuits. See Armstrong v. Ettlesohn, 36 Fed. 209; McConville v. Gilmour, Id. 277; Armstrong v. Troutman, Id. 275; Yardley v. Dickson, 47 Fed. 835; Fisher v. Yoder, 53 Fed. 565; Stephens v. Bernays, 44 Fed. 642. See, also, Gibson v. Peters, 150 U. S. 342, 14 Sup. Ct. 134; White v. Ewing, 15 Sup. Ct. 1018.
These cases are all, in' effect, based upon the ruling in Price v. Abbott, and 1 must say that, in view of the ruling of the supreme court in U. S. v. Germaine, 99 U. S. 508, and U. S. v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, it would seem clear that the holding in Price v. Abbott is based upon an untenable assumption, to wit, that an appointment of a receiver, made by the comptroller, can be deemed to be made with the approval of the secretary of the treasury, and therefore; the receiver can be held i.o he an appointee of the secretary, and therefore an officer of the United States, because; appointed by the head of the department; it having been settled in U. S. v. Germaine, supra, that no one, although acting for the United States as its agent, can be deemed to be an officer thereof unless he holds his position by virtue of an appointment by the president, or by the head e>f a department, or by a court of law. The decisions in Price v. Abbott, at circuit, and in U. S. v. Mouat, seem to be; in direct e:onflie;t, and if 1 deemed the quesfiera open for me fox* decision on its merits, I should he compelled to hold that, under the ruling in the case;s cited, of U. S. v. Germaine, and U. S. v. Mouat, a ree:eive;r is not an officer of the United States, within the meaning of section 629 of the Revised Statutes, because he is an appointee of the comptroller, who is not the head of a department, and there is no statute which author
